Bail money has trapped poor black Americans for decades. But bondsmen are hitting back at attempts to reform the system
This article titled “TV made America’s bail system famous. Now reformers want to end it” was written by Jamiles Lartey in Essex and Passaic County, New Jersey, for theguardian.com on Wednesday 30th August 2017 11.00 UTC
James Lumford thought his luck was turning.
After being laid off and enduring a six-month drought looking for work, he had found a new job he loved as a warehouse manager. Lumford, 39, was the primary breadwinner for his wife, Debra Kidd, and her two adult daughters, who all lived together in Newark, New Jersey.
One late spring day in 2015, barely three weeks into his new job, Lumford got a call he said came out of the blue. His wife and one of her daughters had been arrested for the armed robbery of a neighbor. Police wanted him and the other daughter too. Shocked, Lumford and his stepdaughter turned themselves in.
Lumford told authorities he and Kidd had been hosting friends at the time the robbery was supposed to have taken place. The authorities didn’t listen. The family was cuffed, booked and carted off to jail.
Three days later, Lumford was arraigned via video conference. His bail was set at $200,000, and his wife and her daughters’ were similar. It might as well have been $1bn.
“Don’t nobody got a house to put up for me,” Lumford said, laughing. “Ain’t nobody putting up no house or putting up a $25,000 bond that they’re not going to get back. So now I’m basically just sitting there. I’m stuck.”
He would remain stuck for more than eight months before taking a vastly reduced plea as the prosecution’s case against the family began to fall apart – losing his job, their home and the better part of a year in the process.
For most poor and working-class Americans who get sucked into the criminal justice system, that’s how this process goes. Long before a conviction, those accused routinely have to make the choice between hawking possessions and begging relatives to pay their way out of jail, or submitting to the indignities of life behind bars to await their day in court.
It is a system familiar the world over, thanks to TV shows such as Dog the Bounty Hunter and movies such as Quentin Tarantino’s Jackie Brown. Bail is a sum of money set by a judge that a defendant can pay to a court to secure his or her release until the state is ready to take them to trial, a process that can take months or even years. But while it’s bounty hunters and private lawmen who get called in when a defendant skips out on court, it’s bondsmen who make the real money out of this system, collecting their fees from indigent defendants no matter how their cases end up.
But if Lumford had found himself in a similar scenario today, his experience would have been almost unrecognizable.
New Jersey is at the front of a pack of states moving to reinvent the way that pre-trial justice is done in the US. The reforms, which officially went into effect on 1 January, mean that judges must consider first and foremost during an arraignment the “least restrictive” pretrial conditions possible, so long as they are not likely to compromise public safety.
In practice, this means letting most people who would have faced impossible bail amounts before out on their own recognizance to attend court, without collecting a penny from them.
So far, reform advocates are pleased with the results. In just the first two months, the New Jersey jail population dropped by about 10%, and it was down more than 27% from the year before. In the first three months of 2017, New Jersey judges set just eight money bails out of roughly 6,000 criminal cases, a truly dramatic change. “Everyone used to get money bail,” said Roseanne Scotti, senior director at the New Jersey Drug Policy Alliance.
Reform has enjoyed broad liberal and conservative support, and advocates say the state can be a model for others, but the bail industry is fighting hard, presenting itself as an irreplaceable firewall between public safety and rampant crime. Over the summer, the industry launched two federal lawsuits at the state aimed at reversing the changes.
“It’s revolving-door justice. It’s a get-out-of-jail-free card,” said Ron Olszowy, a New Jersey bondsman. “Without bondsmen, you’re going to see an increase in crime, the morale of the police drop and the taxpayer is going to get burdened. It’s a mistake.”
‘Hypocritical, a case of amnesia, or both’
The concept of bail money, which has its roots in British common law, is meant to strike a balance between the threat of an individual not appearing in court and the constitutional principle of “innocent until proven guilty”.
Since bail money is really just a placeholder, once the accused shows up for trial, it is refunded in full.
But that’s not the full story.
Enter the private bail-bonds system, a convoluted free-market mutation of the bail scheme that today only operates in the US and the Philippines.
If a defendant cannot afford to pay their bail in full, they can go to a bail bondsman, a private business that will post “bond” to the court on their behalf, charging the defendant a non-refundable premium – typically 10% of the bail amount – for the service.
In short, the wealthy get their bail money back even if they are found guilty, so long as they show up in court. But poor people lose their bond premiums for ever.
In addition, many bondsmen allow defendants to pay only a proportion of the bond premium upfront, lending them the rest at usurious interest rates, when legally allowed.
This has the effect of both plunging the defendant into debt and allowing someone out of jail for a tiny fraction of their original bail, undermining the argument that having to pay bail ensures a defendant will turn up to court.
This is one reason reform has been able to find supporters on both sides of the aisle. It can just as easily be spun as a law-and-order reform as it can a progressive one. In exchange for cutting down on the number of poor people sitting in jail for low-level offenses, New Jersey’s reform also granted prosecutors the freedom to ask that a person be held without bond when they are judged too risky to release. Before reform, the most prosecutors could do was ask for an impossibly high bail and hope the defendant wouldn’t have the collateral to put up for bond.
Far from the gruff, aggressive character most people would imagine of a bail bondsman, Olszowy is more rotarian than renegade, in a crisp navy suit and with brushed-back hair. At 71, he could be called an elder statesman of a profession he’s been in for about a half-century.
The walls of his Nationwide Bail Bonds office in Clifton, New Jersey, are decorated with plaques and certificates from bail and bond organizations and police benevolent associations – along with a membership certificate from the civil rights organization the Congress of Racial Equality.
He’s clearly proud of the business he’s built, and believes bondsmen are contributing to the public good. But it’s difficult to determine exactly what value he and bail professionals like him believe they add to the system. Bondsmen let accused criminals out of jail for a living, even as they argue that if this happened without money changing hands – from poor folks and into their pockets – the process would lead to social ruin.
“It’s either hypocritical, or a case of amnesia, or both,” said Pete McAleer, a spokesperson for the New Jersey administrative office of the courts, a major proponent of the bail change. “The idea that there’s this new danger because we’re looking at the risk that someone poses as opposed to how much money they have is disingenuous, to say the least.
“What we’ve done is simply removed money as a factor in who gets released and who doesn’t. And instead, there’s more of an honest conversation about what is the risk that this person poses.”
That’s not what happened in Lumford’s case. “If they were looking at my record, looking at my work history, they’d have known that I’m just not ‘in the streets’ or a threat to anyone in society. I work every day. I’ve held a job ever since I was 14.”
Lumford had a couple of low-level priors on his record: a marijuana possession charge from 1994 and a robbery charge from when he was 18, but nothing in 20 years to suggest that he would pull out a gun, walk into a neighbor’s home and threaten to shoot the woman’s children, all to collect $120 cash and a designer handbag.
Lumford recalls his disbelief that a minute amount of evidence – essentially one victim’s claims in a police report – was enough to justify depriving him and his family of freedom for months. “They don’t even need evidence. All they all they need [is] hearsay, and you’ll go to jail,” Lumford said.
After his arraignment, Lumford was moved to a permanent cell. Months went by without him seeing a judge.
By the time the state came to Lumford with a deal, eight months later, they had reduced the charge to third-degree burglary and offered him “time served” plus probation. He could walk free, and the charges against his wife would be dropped too.
“If the state had a case, there’s no way they would have offered him less than 10 years. Seven, at the very least,” said Scott Welfel, Lumford’s public defender. “We were just dying to try the case.”
Welfel had an alibi witness for Lumford and Kidd, and had another witness relay why the victim might have been inclined to fabricate parts of her complaint.
Kidd was already out, her family having scraped together enough cash to bond her out after her bail had been reduced by about 80%. “Since she wasn’t in jail, she was going to go to trial no matter what,” said Welfel.
But had he decided to continue the fight, Lumford would have had to sit in jail for months more awaiting a trial date.
He took the deal.
That is one of the most insidious things about pretrial detention, according to reform advocates. The prospect of getting out of jail, especially given the slow clip at which criminal law proceeds, is often too tempting to pass up, no matter how much a person wants to prove their innocence in court.
Research shows that defendants held in jail take plea deals much more often than those who are able to bail or bond out.
Under New Jersey’s new system, the court looks at a defendant’s prior record, their family influences, their finances – everything that might speak to their likelihood of skipping out on court or committing a new crime before trial. Defendants are assigned a score on a six-point scale and this determines whether they will be recommended for release or not, and what conditions will be placed on that release: phone or in-person check-ins, curfews or electronic monitoring.
Still, Ozslowy insists on the superiority of the old system. “It’s a tremendous difference,” he says. “I have a financial stake so we monitor our people. If I put up a $100,000 bond – those people get phone calls.”
In reality, the financial risk bondsmen assume is quite limited. In most cases, they hold collateral – usually property – that they can seize if a defendant skips court and the bail is forfeited. And if the defendant winds up back in state custody, either re-arrested by law enforcement or captured by a bounty hunter, the bondsman is once again off the hook.
In circumventing the bondsmen, the state has essentially removed two things from the equation: the profit motive and the “gut feeling” that bondsmen often operate on, instead substituting the algorithmic logic of computerized “risk assessment” tools.
It’s possible these types of tools may be unintentionally predisposed to racial bias due to inherent inequalities in the criminal justice system and society. Minorities and people of color are less likely to have access to wealth and more likely to have a record of frivolous arrests which will tend to drive up their risk scores compared with white people.
But the tendency to discriminate against the poor is much more acute in a system that relies entirely on the exchange of money for freedom.
The New Jersey tool was found to be unbiased in an internal analysis and the state has insisted that “should this change, New Jersey courts will be prepared to address the issue”.
And the retuning of algorithms is an easier fix than relying on the caprice of men like Olszowy, who may describe himself as “colorblind” but in a digression about the modern generation decries “the males with pants so low you can see the crack of their ass” as proof positive of moral degeneration and lack of respect for authority.
As for Lumford, he was lucky enough to find work again within a few weeks after getting out on the plea deal. His family lost their apartment and bounced around between friends and unsuitable housing for months before finally landing somewhere stable and starting to put back the pieces.
Asked how he thinks he would have fared if the case had come up now, post-reform, Lumford is understandably skeptical. “They’ll find a way to manipulate that. They’ll just restructure it in a different way,” he said, before chuckling and taking a pause.
“I guess we’re gonna see how it works out.”
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