Bailing Out of Criminal Justice Reform

We’ve talked a lot here about the welcome and growing support of conservatives for criminal justice reform. But it’s important to look into the details of what a new and improved system might look like. In a fascinating glimpse of one possible future in the new issue of the Washington Monthly, the Marshall Project’s Alysia Santo examines the efforts–backed by none other than the American Legislative Exchange Council–of the bail bond industry to adjust to potentially smaller prison populations by obtaining an even larger role than it already has in the supervision of people on the margins of incarceration: people owing fines or securing an early release. And it should be a bright warning sign that the state where such “innovative” approaches are far advanced is that beacon of progressive policy, Mississippi.

Discussing a new system of “post-conviction bail” that offers bail bonds rather than court-supervised payment plans for people who can’t afford fines or face some other non-prison sanction, Santo says this of Mississippi:

Mississippi has been a kind of laboratory for bail industry experiments. The state is the country’s poorest and has the third-highest per-capita incarceration rate. The Mississippi Bail Agents Association exercises strong legislative influence, boasting on its website that “[s]ince 1992, there have only been two years in which the MBAA did not succeed at making changes to the state bail statutes.” The bail industry has given more in campaign contributions per capita to state politicians in Mississippi than anywhere else. Versions of post-conviction bail legislation have also passed in South Dakota and Michigan, a victory celebrated by bail agents but not yet put into widespread practice.

“It’s just another tool in the toolbox,” says Gene Newman, a bail bondsman who claims credit for writing Mississippi’s post-conviction bond bill, which passed the legislature in 2007. After a person is convicted, a judge might order the defendant to complete certain requirements to avoid jail, paying a fine…, going to rehab, or submitting to other types of monitoring. In order to ensure that the person returns to court and proves she has met the requirements, the judge can require her to purchase a bail bond. As with traditional pretrial bonds, it becomes the bail agent’s responsibility to locate and apprehend people who don’t return to court.

Seen this way, the whole bail industry is an example of a privatized public responsibility, much like privately operated jails. There’s no inherent reason court officers cannot do what bail bondsmen do; private bail bonds are not the custom in any other country other than the Philippines, and there are even a few states here who have recently moved to sharply restrict the responsibilities for supervision left to profit-seeking entities. So naturally the industry is pushing back with new services to offer criminal justice systems that don’t want to bother with pre- or post-incarceration supervision, and whenever profit and public policy meet, it’s no surprise to see ALEC there serving as the quiet middle-man letting lobbyists write “model legislation.”

Anyone interested in criminal justice reform, or in the ways in which a determined lobby can find ways to get around even the best reforms, should read Santo’s piece. You may never listen to one of those catchy radio ads for bail bondsmen (“When you been a bad mama-jamma and they put you in the slammer”) quite the same way again.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.