Over the last decade, there has been a lot of controversy surrounding the practice of allowing those accused of crimes to be "bailed out" of jail while awaiting trial, by posting a money bond. There is good reason for the controversy. The system is predatory. Judges almost always set the bail far higher than the accused can afford. Even with bail bondsmen "helping out", the cost is prohibitive. And it does not matter whether the accused is guilty or not. Merely being accused of a crime suddenly puts the cost of freedom at a premium that is barely affordable in the moment and sometimes life destroying in the long term. Unfortunately, the odds of winning a criminal case from behind bars are extremely low. Finding and hiring a decent attorney from jail is nigh on impossible. Some jails maintain phone lists for local lawyers, but local lawyers almost always have a very strong conflict of interest, with strong motivations to maintain good relationships with local judges and prosecutors, even at the expense of their own clients. Jails almost never provide phone lists for lawyers outside of the local area. If you are lucky enough to have someone outside who is willing to help, they might be able to find a suitable lawyer, but with very limited access to the candidates, the accused is very unlikely to find the best lawyer for their specific circumstances. The result is that those who cannot afford to pay bail typically end up with public defenders, who are overworked, underpaid, and have an even stronger incentive to sacrifice clients assigned to them to the "justice" system to maintain professional relationships.
Few people today truly understand how the bail system was originally designed to work. As originally intended, it is actually quite elegant. The system was created because it was understood that incarcerating people accused of crimes but not convicted is unjust. They are, after all, innocent until proven guilty, are they not? And keeping an innocent person in jail is obviously a miscarriage of justice. Unfortunately, there is a risk that if they did actually commit the crime, they will attempt to flee law enforcement. Bail bonds were an elegant if imperfect solution to this problem. During the arraignment of a person accused of a crime, the judge is supposed to determine how much money the accused can afford to give up in exchange for freedom, then balance that with the risk of flight to determine and assign a fair bail bond amount. The accused could then pay that amount into a bond, a temporary holding of the money by law enforcement, that would be fully refunded once flight risk was gone (typically once the case was over). There are two critical things here. The first is affordability and the second is refundability. The idea of bail bonds is that the jurisdiction is holding some money of the accused as collateral, with the goal of minimizing flight risk. As long as the accused shows up to court as ordered, the bail bond is refunded once the case is over. And this is true whether the case ends in acquittal or conviction. Bail is not supposed to be a punishment, a fine, or a fee. It is only supposed to be collateral, and unless the flight risk is so high that the judge does not believe that affordable bail would be sufficient motivation to prevent flight, it is supposed to be within the capacity of the accused to pay. If the judge does feel that it is impossible for the accused to pay an amount of bail sufficient to prevent flight, it is the responsibility of the judge to deny bail. There is some flexibility in this though, to allow friends or family members to pay bail in exchange for taking upon themselves the responsibility for ensuring the accused does not flee.
Unfortunately, due to a combination of laziness of law enforcement, profit motive, and general lack of morals and accountability of our legal system, this system has been hijacked for profit. Bail bond companies have popped up to "help" those accused of crimes who cannot afford to pay the assigned bond amount. The very fact that those accused of crimes routinely could not afford their assigned bonds is the first miscarriage of justice in the system. Why judges did this is unclear, though back when this system was first put in place, corrupt judges were common. Bribery and other illegal and unethical influences were normal. Not to suggest that the majority of judges were corrupt, but if you read journals and non-fiction accounts of people's lives from 100 years ago and further back (especially in the U.S. in the 1800s), a great many of them that include anything regarding law enforcement and trials include accounts of at least one corrupt judge. And cash bail is much older than this, with hundreds of years of history in Europe, where corruption was often just how the judicial system and law enforcement worked, and the majority of judges probably were corrupt.
But how do bail bond companies actually cause problems? Today, every judge knows that there is a bail bond company waiting to "help" every person who is offered bail. Actual ratios vary with company and region, but bail bond companies often charge between 10% and 20% of the bond amount. So when a judge is setting bail, the judge will take into account the fact that the accused can get out of jail for only 10% or 20% of the amount that bail is set to. If the judge determines that the accused can reasonably afford $500 bail, and the flight risk is not high enough to justify setting it higher, then the judge will set bail for $5,000. If bail was set to $500, then the accused could get out for $50 to $100. And because the bail bond company does not refund the bond once the case is completed, there is no motivation for the accused not to flee. And in fact, this is true regardless of what bail is set to. Instead, the bail bond company is liable for the bond amount.
This is how bail bond companies work: The client pays the bail bond company some percent of the bail amount set by the judge, typically in the range of 10% to 20%. High risk clients might be required to pay more. The bail bond company keeps this money regardless of the outcome. This is their fee. Then the bail bond company puts up the full bail amount, giving it to the police or whoever handles that for the specific jurisdiction. That money goes into a bail bond, which is refunded when the case is over. So now the bail bond company stands to lose the $5,000 or whatever bail was set to. They have the incentive to make sure the accused shows up to court and does not flee. If the accused takes off, the bail bond company loses that $5,000. The $500 paid by the client is something like a one-time loan interest payment, similar to how payday loans work (including being similarly predatory). Bail bond companies often get special treatment, and many jurisdictions use bail bond money as reward for capture if that money is seized due to the accused fleeing or not showing up to court. Law enforcement will often give bail bond companies some time to capture the accused before claiming ownership of the bond. And when law enforcement does start tracking down the accused, if the bail bond company can capture them first, the bond money will be returned to them. For law enforcement and the governments they serve, this is a great deal, because they do not have to spend money doing their job. Instead, bail bond companies will do the job of law enforcement (and are sometimes even legally deputized, though without wages or other compensation), and those accused of crimes pay for their labor (again, whether they are guilty or not, and whether they jump bail or not).
(Note that most bail bond company contracts do include liability for the client if they violate the terms of bail. If the client jumps bail, they (or whoever signed the bond agreement with the company, if wasn't the accused) are contractually obligated to pay back the bail bond company for the full amount of the bond. Often this does not matter, because just getting arrested and put in jail frequently leads to job loss, loss of property, and large legal fees, rendering the client incapable of repaying the money, and if they did actually commit the crime and are convicted, they could end up incarcerated for years on top of that and unable to get a decent job after that. There's not much motive to repay bail bond companies in these cases, and those irresponsible enough to violate the terms of bond are also likely not responsible enough to ever repay the debt. In short, this is not a strong motive to adhere to the terms of bail.)
This is all a scam. For law enforcement and their associated governments, this saves money at the expense of those accused of crimes. Bail bond companies obviously benefit from this, often getting paid hundreds or thousands of dollars for what amount to short term, low risk loans, with worse interest per unit time than loan sharks (again, in the realm of payday loans). Additionally, bail bond companies literally have a captive market. If you are accused of a crime, and you don't get bailed out, odds are very high that you will be convicted even if you are innocent. Finding a decent lawyer is almost impossible from jail. So you have to choose between being punished for a crime you may not have committed or just submitting to getting scammed. And even if you did commit the crime, if you cannot get a good lawyer, odds are you will suffer an unjustly severe punishment for your crime. For the judicial system, there is less benefit, but it does generally guarantee that there will always be someone who has both the resources and motivation to capture those who violate the terms of their bail, even when law enforcement is massively underfunded or just plain lazy. Ultimately, those who pay for this are those accused of committing crimes. They do not have to actually commit the crimes they are accused of to be forced into this scam, and even if they did commit the crime, they still have to submit to the scam to get a fair trial and avoid cruel and unusual levels of punishment.
This does not necessarily mean that getting rid of bail entirely is the right thing to do though. The core justification for bail still stands: If we believe in and adhere to the principle that those accused of crimes should be treated as innocent until they are proven guilty, we cannot keep people in jail until they are acquitted. That's more unjust than scamming them for their freedom. The original intent of the cash bail system was and still is wise and good. The problem is allowing a middle man to scam those accused of crimes and then adapting the judicial system to facilitate this scam instead of just shutting down the scam. The solution is to abolish bail bond companies entirely. Do not allow 3rd parties to post bail. Perhaps make exceptions for family members and close friends, but to avoid abuse, require the judge to reevaluate bail based on who is paying it, and require evidence that the accused cannot afford to post bail directly. If a person can afford to pay bail themselves, the judge should deny any petition to allow anyone else to post bail. If the accused cannot afford to pay their own bail, then a friend or family member should be allowed to petition the judge to pay bail themselves. The judge must then determine if that person can be trusted to ensure that the accused does not flee and does show up to court as ordered and if so, then the judge will determine what amount is both affordable and will be sufficient motivation for the person paying bail to keep their agreement. Perhaps even require them to swear under oath that they can and will ensure that the terms of bail are strictly adhered to.
Is this a perfect system? No. Will it sometimes be abused? Sure. Does that mean we should not do it? Well, why do we not just punish everyone accused of a crime without even having a trial, when we know that some people who are actually guilty will end up being acquitted? If we put punishment and safety ahead of justice, we will end up punishing a great many innocent people. Our current bail system does that, and that is a bad thing, but abolishing bail and keeping people accused of crimes in jail while awaiting trial does it even worse. A justice system that routinely punishes the innocent encourages crime, because avoiding crime has no benefit when you will be punished whether you are guilty or not. The idea that we should treat people as innocent until proven guilty is an admission that it is better to sometimes let guilty people go free than it is to ever let an innocent person be punished. Our current bail system does punish innocent people, and abolishing bail entirely punishes them even worse. This is very bad thing, and we can and should be doing much better. So while a bail system without the bail bond company middleman might indeed sometimes allow the guilty to escape, it is better than punishing the innocent.
In addition, we do not just have to lie down and accept the abuse that is bound to happen sometimes. We can make it a crime to lie about financial resources during bail hearings. We can punish those who post bail on behalf of others in bad faith. We can deny bail for anyone who has ever violated the terms of their bail, and we can summarily reject 3rd party bail petitions for anyone who has ever posted bail for someone else and then allowed the terms of bail to be violated. We can ensure that there are strong motives against abuse, without violating anyone's rights and without harming the innocent or otherwise treating them unjustly. And we can even retain many of the benefits of the current system, by allowing bounty hunters to earn bail bond money where bail was violated by capturing the accused and returning them jail. Yes, sometimes abuse will still happen. Right now though, abuse is just how the system works. Replacing the massive scale institutionalized abuse with a system where abuse will occasionally happen is a massive net gain. There is no perfect system, but we can do far better than we are now. We should be protecting the innocent much better than we currently are, and even the guilty deserve better treatment than we currently provide.
