In 2023, state legislators from Connecticut to Montana and from North Carolina to Texas have been working on bills and proposals related to bail bond reform, a judicial procedure issue that is in dire need of being reconsidered. Through news media coverage of these reform efforts, many voters are learning about the way bail bonds fit within the American justice system. The average voter is mostly familiar with bail bonds through reality television series that follow bounty hunters and skip tracers, but these scripted productions rarely show the financial side and how the system continues to trap low-income defendants in detention.
1- Bail Bonds are Surety Bonds
In the American common law system, magistrates and judges set the bail amounts of surety bonds to grant the release of individuals who have been arrested and charged with crimes. If defendants fail to appear for their court date, the amount of the surety must be paid to the court because the bond has been broken. Surety bonds are financial guarantees used to secure a contractual obligation. In the case of a bail bond, surety bond firms can assist by providing cash or collateral in exchange for a service fee. A bail bondsman provides a financial service that is calculated by the bail amount; for example, if bail is set at $15,000, a bondsman can charge 10% as the fee, so the defendant would be able to get out of jail with $1,500 paid to the agency posting the surety.
2- The High Cost of Bail Bonds Calls for Reform
Of the various goals of the Pretrial Integrity Act, one that stands out seeks to address how expensive bail bonds are for low-income defendants who often crowd detention facilities before they go through trial. Judicial guidelines must be followed to this effect, but they do not often align with reality. Many American lawmakers believe that magistrates should have the same discretion as judges when setting bail, particularly when they have information about the financial background of defendants, but this would require systemic reform to extend the reach of pretrial services.
Without the availability of bail bond agencies to help defendants get out of jail, the overcrowding issue would be even worse. In many court systems, bail bondsmen are the best hope for many low-income defendants who do not have sufficient assets to secure the bond and make bail.
3- Judicial Discretion Should Feature More Socioeconomic Analysis
Something that current efforts to reform the bail bond system fail to thoroughly address is that judges should be given more discretion in setting bail based on the potential risks to the community than the flight risk posed by defendants not showing up to court. As the situation stands, less than three out of 100 defendants revoke their bonds when they do not appear in court. What is needed in the American criminal justice system is a detailed socioeconomic evaluation of how keeping defendants in jail with high bail bond amounts only sinks them deeper into financial difficulty.