The $2 Billion Bail Industry Is Facing an Existential Crisis

Directly across Tulane Avenue from the criminal district courthouse in New Orleans, two bail bond offices sit side by side, hinting at how costly a trip to jail can be in a city where 85 percent of people who enter the criminal legal system are too poor to afford a lawyer. In New Orleans, bail agents take up to a 13 percent cut (plus fees) of whatever it costs to win a prisoner’s freedom from the city’s infamous jail lurking just blocks away, leaving low-income families scrambling for extra cash before loved ones miss a day of work and lose their jobs. The sign hanging on the adjacent law office advertises two services: “Bankruptcy from $750” and “Divorce from $500.” Next door, a squat brick declares “WE FIX CREDIT” across the front window. Walk another block and you arrive at a 24-hour liquor store.

Around the corner, a coffee shop has sprung up between the eateries, used car lots and numerous bail bond offices that dot the neighborhood. There I meet a group of racial justice activists, including Harriet,* a local organizer working to free Black mothers stuck in jail simply because they can’t afford to post bail or a lawyer to navigate the pretrial legal system’s web. Along with other activists, Harriet had just reunited two mothers held in jail with their families in time for Mother’s Day. “Black people have been bailing each other out since the days of plantations … we see the criminal justice system as a plantation,” she says.

Along with Chicago, Houston, New York and others, New Orleans counts itself among the US cities at the center of the national debate over mass incarceration and the jailing of people who have yet to be convicted of a crime. The city has become a frequent anecdote for everything that’s wrong with the pretrial criminal legal system. Scandals at the criminal courthouse routinely leap from local headlines to the national news. The city’s infamous jail, which disproportionately houses low-income people of color (particularly young Black men) and remains under a federal consent decree, has suffered a spate of suicides and untimely deaths, including a 15-year-old boy who hanged himself from a window bar last year.

According to Harriet and her colleagues, the pretrial system in New Orleans has little to do with “justice” and stopping crime, and everything to do with race and poverty. “Crime isn’t really a problem, it’s a system that is set up to keep certain people marginalized,” Harriet says. The activists say the local jail is full of people who can’t afford bail, fell behind on fees, missed court dates in order to work or are simply accused of crimes of survival, such as shoplifting diapers from a dollar store. “Predatory policing” ensures most arrestees are poor and Black. “You can stay one day in jail, and your whole life is completely ruined … even if you are not charged with a crime, you are still deemed a criminal, you’ve lost so much and you can’t shake that stigma,” Harriet says.

The number of people jailed in New Orleans has declined in recent years, but the city is still trying to shake its reputation as the “most incarcerated city in the most incarcerated state in the most incarcerated country in the world,” as the former mayor once put it. To do this, New Orleans has pursued reforms aimed at reducing the number of people who are in jail because they cannot post bail or pay fines and fees. In 2017, the city eliminated bail and bonds for most low-level “municipal” offenses, such as urinating in public, and began releasing most arrestees on their own recognizance. This summer, judges in New Orleans will begin using a computerized “risk assessment tool” to better determine who should stay in jail because they pose a public safety risk, and who should be allowed to go home while they await their day in court.

Harriet says the women freed from jail with a revolving bail fund in New Orleans have a much better chance of beating their charges once they are out of jail. Legal experts agree, and advocates say ending cash bail is central to reducing mass incarceration. “The most critical part of what happens with your case is that initial bail decision on whether you are detained or you are released,” says Insha Rahman, a former New York City public defender and director of the bail reform and pretrial program at the Vera Institute. “If you are out of jail, what happens with your case is wildly different than what happens if you are in jail.”

New Orleans is not alone. In courts across the US, civil rights lawyers have successfully argued that holding people in jail simply because they can’t afford to post bail is unconstitutional. Now, city and state governments nationwide are considering alternatives to “cash bail,” and the $2 billion bail industry is facing an existential crisis. “They are on the losing side of history,” Rahman says. “We are not going to have bail agents in 50 years, I am pretty sure about that.”

Not so fast, says Jeff Clayton, the executive director of the American Bail Coalition, the main lobbying group representing the insurance companies that underwrite bail bonds across the country. With the movement to abolish bail gaining traction nationwide — and New Jersey recently ditching money bail altogether — Clayton has been busy. “Similar to many other issues, it’s not a ‘yes’ or ‘no’ question,” Clayton tells Truthout. “You’re either for cash bail or against it, and I don’t think that’s productive, because bail is a constitutional right. It’s never going to entirely go away, even in the federal system.”

I asked Clayton about a central argument against cash bail: That it inherently creates an inequality between those who have the financial resources to post bail and those who don’t, leaving the poor scrambling to find extra cash to pay a bail agent or languish in jail. He said inequality runs through the entire system, whether defendants can post bail or not. If you’re rich, you can afford a good lawyer, and perhaps you even have political connections that can help you gain favor with the prosecutor and judge. “Under an excessive bail inquiry, judges are supposed to smooth this out,” Clayton says. “And while the other side would argue that nobody should be held in jail due to an un-posted bail, you know the reality is, those bails should be lower in the cases of people who have less resources and higher in the cases of people who have more resources.”

Clayton said his organization supports some of the same reforms pushed by anti-bail advocates, such as lowering bail schedules, eliminating bail for minor crimes and instituting alternatives to incarceration, such as treatment for people suffering from mental health issues and substance abuse problems. “It’s a combination of low bails and lack of due process in many parts of the country that we think is a problem, and frankly, those aren’t our customers,” Clayton said. “We can’t help those people.”

However, the American Bail Coalition says it did not take a position on bail reform in New Orleans. Back at the coffee shop, Sade Dumas explains that the local bail bond businesses threw all of their political weight against the efforts. As the executive director of the Orleans Parish Prison Reform Coalition, Dumas has worked with local activists and national reform groups to slowly chip away at mass pretrial incarceration in New Orleans and has frequently found herself at odds with bail bondsmen as a result. “They see that this movement is coming and is getting stronger and they are changing their strategy and tactics,” Dumas says.

As the representative for the insurance underwriters of cash bail, the American Bail Coalition has also butted heads with bail agents and bounty hunters who, in many states, enjoy largely unregulated power to arrest their clients for failing to make payments or show up to court. Reports of bail agents abusing their clients while sucking millions of dollars out of poor families have tarnished the industry, including allegations of extortion and kidnapping. Clayton says he wants to “professionalize the arrest process” by placing more requirements on becoming a bail agent, such as background checks and training. However, Professional Bail Agents of the United States, an industry group led by reality-TV star Dog the Bounty Hunter, has pushed back against such reforms in states across the country.

“When you give someone a badge and awesome power [to arrest people], there is going to be a group of people who abuse it, and you have to admit that and take the steps to stop it, and that’s what we need to do as an industry, and I think in certain respects we are probably failing at that,” Clayton says.

Rahman said it sounds like the American Bail Coalition is being “reasonable” because reforms are inevitable and the lucrative industry’s days are numbered. The number of people held in jail in New Jersey dropped by 20 percent since the state replaced cash bail with a system in which judges use data to assess whether a defendant is a danger to society or a flight risk. Although the new system faces funding challenges, Rahman said reformers elsewhere are taking notice. Bail reform is currently being debated in New York and California, and Alaska recently eliminated bail for most defendants. Researchers expect the reform to reduce Alaska’s prison population by 13 percent and save the state $380 million.

However, taking money out of the equation and forcing prosecutors to make a case for detaining defendants is only one piece of the decarceration puzzle. “The other half of the battle is taking incarceration off the table for a much larger set of cases that we currently have,” Rahman says. Bail reform is only working in New Jersey because it comes along with a broader “culture shift” away from pretrial detainment. Bail reform can only do so much if prosecutors continue stacking charges in order to squeeze plea deals and judges fail to think about the actual pros and cons of keeping people who have yet to be convicted behind bars. “That’s where we need to move the fight, and right now, the fight is just about the decision over pretrial release or detention itself,” Rahman says. Bail reform may be in vogue, but it’s no silver bullet for ending mass incarceration.

Speaking to the activists working to free Black women from jail in New Orleans, it’s clear that the bail offices surrounding the criminal courthouse are not the only reason the city has a mass incarceration problem. Public defenders are backlogged and underfunded. Paperwork often goes missing, court dates change and lawyers fail to show up at court appearances. The New Orleans economy has long suffered from high unemployment and low wages, and, as Clayton admits, navigating the criminal legal system is difficult if you don’t have money. Harriet and Dumas say people must often decide between missing a court date and missing a shift at work. “Once you miss one [court date] and a warrant goes out, of course you are scared and don’t want to go back,” Harriet says.

In fact, one of the two women the activists freed from jail in time for Mother’s Day was not bailed out. Instead, activists pestered her lawyer to “pick up the phone more” and ask court officials to justify her incarceration. After weeks of advocating for the woman, they finally got a “different answer” from the court system, and she was released to her family without any cash exchange. In the end, bail was not the issue — the woman’s case fell through the cracks of a broken system, and she was in no position to advocate for herself as a prisoner. “I have this dream where we are all lawyers, where this knowledge for navigating the system is accessible,” Harriet says. The story exposes a central problem with jail: It’s a dragnet for people who would quickly benefit from social services or simply having someone in their corner. “Maybe they just need someone to hold their baby while they are in court,” Harriet says.

*Harriet asked not to be identified by her real name out of fear that reprisal from local authorities and bondsmen could compromise her efforts to advocate for incarcerated women.