Stack of records on a painted deck, with the top record snapped into two pieces

Bail reform advocates are like a broken record, playing the same old song repeatedly. The tune is predictable. The American judicial system is evil because most states allow the use of cash bail. The cash bail system – a source of income for thousands of law-abiding, hard-working Americans – means a court decides how much money a defendant must pay to be released from jail. But for states that have outlawed the practice, the jukebox has started to play a new song.

The Song Remains the Same

Any bail bondsman in Jefferson County, Arapahoe County, or Denver County will tell you bail reform advocates have used the same cudgel for years – hammering home the tired argument that cash bail punishes the poorest defendants who can’t afford to post bail, while those who can – mostly affluent and white, do. It keeps jails overcrowded, decimates families, weakens communities. Many defendants are first-time offenders who go before a judge for petty crimes and misdemeanors. But many, too, are repeat offenders – comfortably slipping back into crime as soon as they’re released. Recidivism sometimes occurs in states where cash bail has been outlawed or where the laws have been softened.

For those of us working tirelessly in the bail bonds industry, many of us running companies started by fathers or grandfathers, bail reform has been devastating. Wendy Fordim Saler, co-owner of Empire Bail Bonds in Brooklyn, New York, said her 25 year-old family business used to have six locations but is now down to two, and she’s laid off 20 employees. Reform advocates ignore crimes committed by defendants released without bail or who paid very little for their “get out of jail” card. Criminals like:

  • Dylan Woodburn, alleged murderer of a homeless person in Austin, Texas.
  • Gerod Woodberry, alleged bank robber in Manhattan, New York.
  • Tiffany Harris, alleged perpetrator of eight anti-Semitic attacks in Brooklyn, New York.

The common thread? Not all bail reform models work.

What Types of Bond is Available?

Is bail bonding evil? Far from it. It’s a system that’s worked for hundreds of years, and while reform is a great idea, why do reform advocates ignore the obvious? For instance, according to the Congressional Research Service: “Absent clear statutory guidance, judges enjoy broad discretion to determine appropriate conditions for releasing a criminal defendant pending trial.” That’s right. Our elected or appointed judges can use their own discretion for how a defendant is released, even ruling on the type of bond available, such as:

  • Commercial Surety. This is where a bondsman promises a defendant will appear in court “by promising to pay a financial condition of bond if the court finds that the defendant violated any conditions of release.”
  • Cash, Property, or Other Secured Bond. This is where the defendant agrees to use cash, property, or other forms of payment towards the bail amount.
  • Unsecured Appearance Bond. In this case, the defendant doesn’t pay upfront for release, but will pay a penalty for failure to appear as required.
  • Conditional Release. This is described as: “Nonmonetary conditions, which may include pretrial supervision or enrollment in a treatment program. No upfront money is needed for release.”

No matter how the pie gets sliced, someone will complain about getting cheated. Part of the big issue is how to continually fund the judicial system, when limited proceeds from cash bail erodes the ability of the courts and law enforcement to function properly?

Judicial discretion isn’t always the answer, with debate even coming from some law professors: “If such a change is made and past is prologue, there will be an awful lot of people of color in pretrial detention after having been deemed to be “dangerous.” As the saying goes, fool me once, shame on thee; fool me twice, shame on me.”

A PR Nightmare? Boo Hoo Hoo!

It’s inevitable that reform supporters – legislators, lawmakers, community activists – will get what they want eventually, but how long before the “want” is satisfying? Apparently, not very, so reform advocates in Colorado should take notice. The underlying symptoms of recidivism are many and not easily solved.

A defendant may slip into recidivism for different reasons – initial punishment was too lenient, no support programmatically or from loved ones after incarceration, peer pressure, economic stress – but no matter the cause, bail reform advocates are being inundated with bad press as they struggle to make new laws work. They’re also facing cataclysmic loss of support in some states.

Reform supporters in New York complain the press cherry-picks negative stories about defendants who get released with little or no bail or other loopholes, but Bill Mahoney in Politico New York justly observes that “there hasn't been any opportunity for tabloids to write feel-good stories about individuals who have benefited from the new law. Nobody with such a narrative has come forward to share their story.

“That doesn’t mean those stories don’t exist. But their absence from the public debate over bail reform encapsulates the public relations hurdle facing the new law’s supporters, who have seen the margin of public support plummet by 29 points since opponents began a drumbeat of criticism.”

If you’re against bail bond reform, don’t puff your chest up just yet and go all Genghis Khan on supporters. Some believe the curve will flatten eventually, and order will rise above the chaos. Scott Levy, chief policy counsel at the Bronx Defenders in New York chafes at the notion good stories are non-existent. They’re out there, he insists. But until bail reform produces results for everyone, taxpayers will have doubts.