April 9, 2018
by GLORIA MITCHELL
We heard a lot about bail reform this year in California with the companion bills, Assembly Bill 42 and Senate Bill 10 (The California Money Bail Reform Act of 2017). The rush to judgment and pressure to change the system in a swift and dramatic fashion based on national class-warfare rhetoric obscures the true picture of the problems … and real solutions.
While I wish we had the type of iron-fisted political clout, which we are accused of wielding, the truth is that the bail industry did not single-handedly stop the legislation in California. Yes, we were against it, but the real opposition came from groups like the Alliance of California Judges, California State Association of Counties, the Association of Elected District Attorneys, the Los Angeles County district attorney, the Los Angeles Deputy District Attorneys Association, Crime Victims United and other victims groups, and a wide swath of law enforcement associations and unions, among many others.
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Adding to that was a significant outcry from the public who, we discovered, have had enough with the recent trend of soft-on-crime policies including Proposition 47 and Proposition 57.
Targeting and criticizing the bail industry as the key problem in the criminal justice system, is not only misleading but prevents us from truly understanding the real problems. It blinds us and prevents us from listening to constructive ideas and solutions that may actually work. Solutions surrounding bail schedules, market imbalances, and charge stacking. Solutions that the bail industry has brought to the table on multiple occasions but were ignored or rejected.
Why? Because the bail industry is being described as the problem. Decision makers believe that the bail industry only cares about its profits and nothing else. Well, it just isn’t true. We want a workable solution to California’s criminal justice challenges just like everyone else.
What many people don’t understand is that without bail, few in California could afford release at all. In this way, the bail industry helps the poor. Bail is always labeled as an evil “for-profit” business in the criminal justice system. The reality is that bail industry’s revenues pale in comparison to every other business that services the criminal justice system. This includes attorneys, GPS monitoring companies, and drug testing providers to name a few.
In addition, the effectiveness of what we do is constantly and purposely misrepresented by our opposition. Our industry returns defendants back to court from all over the country, and all over the world. And we do this at zero cost to the state or counties in which we operate. If bail is eliminated, the estimated cost to California will be over $3.8 billion. How much sense does that make?
The reason why bail is so effective is because we operate under a strong financial incentive. In one of the most comprehensive studies ever done on the subject of bail (Helland & Tabarrok, University of Chicago Journal of Law and Economics, 2004), the authors concluded that bail agents significantly reduce the rates of fugitives from justice and are the “true long arm of the law.”
To eliminate such an effective solution makes no sense. While reform is sometimes necessary, the goal should not be to take a broad sword to eliminate an entire industry.
What many proponents of bail reform don’t realize is that California’s bail system already has mechanisms in place to deal with many of their issues. If someone in jail is truly indigent, many California counties already have a pretrial services agency to assist them. If someone is not a risk to the community, judges can already release that person on their own recognizance.
The question really shouldn’t be how can we scrap the current system and replace it, but rather, the question should be how can we better manage and improve the current system.
The bail industry has been an essential and valuable part of the criminal justice system in California for decades. To simply think it should be scrapped and replaced is both shortsighted and dangerous.
The right to bail is something that is guaranteed both in the United States and California Constitutions. We hope that California will do the right thing when it comes to holding people accountable and protecting its citizens.
It is what every elected official has vowed to do, and what every Californian family deserves.
Mitchell is president, California Bail Agents Association. Website: cbaa.com.
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