Look Who Is Making Billions From Criminalizing Minor Drug Offenders - A Special Fix Report
As for Florida, in 2010 legislators passed bills intended to undermine pretrial services by overloading service providers and law enforcement officials with paperwork requirements. (This kind of anti-pretrial services legislation is part of ALEC’s “Right to Know” criminal justice legislative agenda which masquerades as in the public good while in fact pushing private gain interests.) During that same time, Democrat Alex Sink, running against now Governor Republican Rick Scott in the gubernatorial election, accepted more than $15,000 in BBI contributions. Ultimately, these bills were vetoed by then Republican Governor Charlie Crist, a moderate, because they "would have limited the number of people that could enter pretrial to the point that it would not be beneficial for counties, Sheriffs and the courts to continue their programs. Pretrial is a useful mechanism for local governments to control their jail population while providing constitutionally guaranteed rights to the accused."
In Texas, state Senator John Whitmire, a Democrat and chair of the Senate’s Criminal Justice Committee, is promoting an industry friendly bill that, in essence, strips courts of accepting directly from defendants less than the face amount of bail or equal security, givings a monopoly to the bail bond industry with its fees of 10%-15% of bond amount detainees must pay. All told, from 2009-2012 Whitmire received more than $35,000 from the BBI in campaign donations, according to the National Institute on Money in State Politics. He declined to respond to The Fix as to why he introduced the bill.
Another BBI ally, Dallas Democratic Senator Royce West, authored SB 975, which addresses requisites for setting bail bonds in a manner favorable to the industry. West received $14,750 from bail bond interests between 2009-2012.
A CLOSER LOOK AT THE BBI AND BAIL BONDING
Off the public radar screen, the bail industry wields influence via national and local trade associations like the national American Bail Coalition (ABC). Along with ALEC as an ally, the ABC deploys money to politicians via the Committee for Economic Growth and Social Justice, a “super” political action committee, or PAC. What makes a PAC super? It can take donations and spend them with no limits on supporting election favorites with advertising supposedly “independent” of a candidate’s official campaign.
In 2013, The ABC contributed $75,000 to the PAC, which accounted for more than 40% of CEGSJ’s donations, according to the Center for Responsive Politics. In local elections, where bail companies stand to gain, a fraction of ABC's $75,000 can provide a margin for victory, especially when bolstered by direct donations from owners of individual bail companies.
Big global insurance companies, which insure the bonds and make money from them, also back the BBI policies and work hand in glove in many legislative arenas to protect their interests in punishment over treatment (which mostly means bails over no bails), according to a 2012 Justice Policy Institute report.
The BBI also organizes national advocacy networks, holds conferences and joins with other powerful lobbying players to advance its interests. Some of these interests are fairly common, such as the BBI pushing for lower tax rates for their businesses in many states. Even so, its support for a punitive rather than rehabilitative approach to drug users has grown more professional over the years as it has sharpened its public relations campaign, its drug war investments, and its bipartisan political connections.
Nicholas J. Wachinski is the executive director of the ABC, which has two representatives on ALEC’s Private Enterprise Board. (ALEC, and its new offspring the American City County Exchange, which targets municipal governments, declined to comment for this article, but Wachinski was eager to discuss industry activities.)
In an interview with The Fix, Wachinski summarized BBI priorities and obstacles: “Our largest push right now is to educate, educate, and educate…Most people misunderstand bail generally, they misunderstand the role of the bail bondsman, and they really misunderstand how effective a bail bondsman can be. The future of the industry lies in education and communication with decision-makers in trying to figure out the most appropriate way the industry can be responsive to the needs of the criminal justice system.”
By this Wachinski doesn’t mean that drug or light crime detainees should get bail-free pretrial services. By “appropriate ways” he is referring to the industry’s drive to get bails set at levels people can afford so that the industry makes money. It won’t profit if high bails keep people detained, or if treatment and services replace jail as the preferred policy. Put another way, a bail bonders' wet dream system allows few people to walk out of court on their own recognizance, or, conversely, doesn't overprice bail for others.
The key here is in the preparation of the bail schedule, Wachinski said. To this end, the dollar amount of bail must accurately reflect the income levels of a particular county. “That’s how you have to determine monetary bail,” said Wachinski. Asked to explain why the BBI opposes alternatives for pretrial detainees, Wachinski said money bail boosts public safety by reducing “flight risk” from court dates. For him, bail ensures public safety.
The BBI’s fight for a status quo in which commercial bail dominates release options for the detained, also affects the issue of prison overcrowding. As with Brown’s veto, the BBI opposes drug-sentencing reforms as a viable alternative to prison overcrowding.
California, for example, is under federal court order to reduce its prison population, which the state addressed to some degree (but not to the satisfaction of the courts) with AB 109, a bill Brown signed in 2011. The law transfers state prisoners to local jails where there is more likelihood of early release because of overcrowding and, crucially, a great chance that local courts will look to send new drug possession detainees to treatment rather than further crowd their jails. More people sent to treatment means, of course, less bail fees from detainees, just as harsher laws and more arrests spell more bail profits.
The ABC’s Wachinski notes candidly that such prison realignment in California and elsewhere, hurts the entire criminal justice economy, including the bail industry. “As a criminal justice stakeholder, we have felt the sting of AB 109,” he said in a phone interview.
THE REALITY OF BAIL SCHEDULES
Although reform is under way in several states, most detainees in the U.S still face money bail set according to offense rather than mitigating circumstances. This approach most obviously harms poor detainees who sometimes cannot even afford the $50.00 required as 10% of a $500 bond. (In most states the bonding fee is 10%-15% non-refundable and bonding companies can tack on other charges and require collateral depending on circumstances.)
Tim Murray, executive director of the Pretrial Justice Institute, pointed out in a phone interview that reform-minded Illinois, Kentucky, Oregon and Wisconsin have eliminated commercial bail. Kentucky, for example, uses risk assessment and pretrial oversight services such as childcare, employment, and substance counseling to evaluate detainee rights to be free before trial.
As it happens, the U.S. is one of only three countries (along with Liberia and the Philippines) with a commercial BBI.
As far back as the 1920s, bail bonds have been viewed as discriminatory, in part because there is no strong link between posting bail and guaranteeing court appearances. (Not to mention that it discriminates against poor and working-class people.) In the 1960s and 1970s, reformers tried to curtail commercial bail by advocating for better pretrial services. This resulted in the Bail Reform Act of 1966 which endorsed in federal courts a presumption in favor of release whereby the defendant receives the least restrictive provisions to ensure court appearance, including release on one's “own recognizance” (OR) or “personal recognizance” (PR).
While many states set out to reform bail laws according to this federal statute, there was backlash that accelerated in the 1970s with the launch of the war on drugs. This diverted public sympathy away from better pretrial advocacy and into a "public safety" and a “war-on-crime” paradigm and became the most influential bail factor, with jurisdictions considering the threat of drugs in relation to crime. "Public safety" also became and remains the ideological (and self-enriching) rallying cry of the prison-industrial complex, including the BBI. Along the way controversial drug testing became one major way to establish a pretrial defendant’s potential public safety threat. Only in the last couple of years has the pendulum just begun to swing in the other direction.
LATEST REFORM EFFORTS OPPOSED BY BBI
In California this year, state Senator Loni Hancock (D-Oakland) introduced SB 210 to reform pretrial detainee policy away from a bail-schedule (menu) model only. Noting that California leads the country with the highest pretrial detainee jail population, Hancock declared: “Between 65% and 70% of those in our crowded county jails are not serving sentences; they are awaiting trial.”
The CBAA unsurprisingly opposes SB 210, claiming “it has no accountability,” according to CBAA president Kreins. To which Hancock replies: “This bill is discretionary, not mandatory. It does not mandate early release in any way...SB 210 would allow a county to designate a local agency to prepare a report about a defendant awaiting trial. As a requirement, this report must use a validated risk assessment to determine whether a defendant poses a threat to public safety, and will make future court appearances. However, a court would retain authority to make the decision about whether the defendant should be detained.”
She adds: “Detaining each defendant costs $100 per day, while alternatives to detention cost as little as $2.50 per day.”
Also in California, and contrary to Gov. Brown’s sense of appropriate timing, in March Los Angeles state Senator Holly Mitchell introduced SB 1010, which is supported by a dozen California criminal justice reform and civil rights organizations. The bill seeks to rectify the “institutional racism” inherent in sentencing disparities between crack and powder cocaine. The bill doesn't apply to selling, manufacturing or transporting cocaine nor does it seek to decriminalize drug possession or provide pretrial services or drug rehabilitation. Mitchell is playing the middle ground here.
Mitchells’ bill is opposed by the California Police Chief’s Assn., the California Narcotics Officers Assn., and, predictably, the bail bonds industry.
Michelle Renee Matisons, Ph.D., has never inhaled. She can be reached at email@example.com
Seth Sandronsky is a Sacramento journalist and member of the freelancers unit of the Pacific Media Workers Guild. Email firstname.lastname@example.org