Taking On the Bail Industry: A Call to Consumer Advocates to Participate in Bail Reform

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Guest Blog by Veryl Pow, Skadden Fellow with Maryland Volunteer Lawyers Service

As a Skadden fellow at a major civil rights organization deploying a consumer law approach to bail reform in Maryland, I find myself occupying a precarious space in both civil rights and consumer law circles. On the one hand, I am often the sole civil rights law practitioner among consumer protection advocates. On the other, I bring a rare consumer law perspective to our state’s bail reform coalition. This formal separation between legal subfields masks the fact that most victims of consumer predation are low-income people of color and that the litigation and legislative advocacy pursued by consumer protection advocates benefit said victims. In other words, the protection of consumers is a civil rights issue. Bail reform provides a clear illustration of this intersection. Because bail bond companies engage in debt collection against consumers of bail bonds, consumer advocates should reconceive the scope of their work, contribute their expertise, and join the contemporary civil rights movement to end money bail.

Nearly fifty-five years ago, Attorney General Robert F. Kennedy championed legislation that would reform the money bail system. In front of the Senate Judiciary Committee, Kennedy characterized bail as a “vehicle for systematic injustice,” incarcerating those who were presumptively innocent solely because “they cannot afford to pay for their freedom.” That is, though bail is theoretically set to guarantee the appearance of a criminal defendant in court proceedings, in practice, it is routinely set at amounts exceeding the means of a defendant.

In the intervening decades, Kennedy’s vision remains an aspiration. Today, in my hometown Baltimore, the average bail amount set is $51,000, while the median income in the five Baltimore neighborhoods most affected by pretrial detention is $26,124. National studies have shown that bail determination outcomes are racially disparate. In Maryland, the mean bail amount set for black defendants is 51 percent higher than white defendants at the bail review hearing before a District Court judge. Due to the racialized nature of bail determinations acting in tandem with other disparities inherent within the criminal justice system, 89 percent of those held in custody in Baltimore are black, despite making up only 64 percent of the population.

That bail reform is yet to be realized is in no small part due to the oversight of the civil rights legal community to mount an effective challenge against the financial backbone of money bail: the for-profit bail industry. By largely focusing on the state’s role in constructing the bail system, civil rights advocates have failed to meaningfully address the material constitution of the system as a public-private partnership between the state and private players. This narrow focus has allowed the bail industry to operate its business unchecked, and in turn, use its profits to push back the tide of bail reform by funding legislative campaigns, proposing model legislation in state legislatures, and suing jurisdictions that have moved towards eliminating money bail.

The for-profit bail industry—the storefront bail bond companies, their debt collection law firms, and the large insurance conglomerates underwriting the bonds—has enjoyed substantial profits of $2 billion annually from the bail system. Due to excessive bail amounts issued in criminal cases, vulnerable families regularly contract with bail bond companies to secure release for their loved ones. Bail bond companies charge a non-refundable fee of 10 percent of the total money bail, known as a premium, even when the defendant shows up to court proceedings and is not found to have committed any crime. From 2011 to 2015, the bail industry charged $256 million in non-refundable fees to Maryland communities.

This stark reality should come as no surprise to consumer advocates on the front lines. Since beginning my fellowship in September, I have volunteered in the District Court for Baltimore City each week through the Consumer Protection Project Clinic hosted by the Maryland Volunteer Lawyers Service, where I consult with and defend debtors against lawsuits filed by various types of creditors, ranging from debt buyers to landlords. In this capacity, I have encountered around a dozen different bail bond companies operating in Baltimore—some of which are unlicensed—filing claims from as low as $500 to over $10,000. Unsurprisingly, most of the bail bond debtors with whom I consult are indigent people of color. While I attempt to obtain relief for my clients who appear in court, the vast majority of bail bond debtors do not show up to initial court proceedings (known in Maryland as the affidavit judgment hearing). As such, bail bond companies routinely win judgments despite violations of the insurance code, contracts law, or consumer protection statutes.

As a consumer advocate, I am particularly appalled by the predatory terms exclusively contained in some bail bond contracts. These terms include the waiver of all remedial rights, and the authorization of broad records checks into private spheres of life unrelated to credit, including medical records, school records, and telephone records. Moreover, these contracts may explicitly authorize bounty hunters to enter into a consumer’s residence and use “reasonable force” to apprehend a criminal defendant. These terms, as well as documentation outlining a consumer’s payment obligations, are often concealed from consumers during the contract formation process. Thus, in the bail bond context, consumer protection assumes a heightened urgency.

Until bail reform more meaningfully accounts for the private profiteers of money bail, reform efforts will, at best, be piecemeal and continue at a tenuous pace. Due to their expertise in litigating against debt collectors, consumer advocates are best equipped and appropriately poised to wage an affirmative fight against major players in the bail industry. To do so, they should reconceive their work as part of the larger civil rights struggle to reform the money bail system and participate in conversations and spaces traditionally reserved for the civil rights community.