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Look Who Is Making Billions From Criminalizing Minor Drug Offenders - A Special Fix Report  

Why are so many drug possessors sent to prison rather than treatment? Consider the “prison-industrial” complex, including the bail bond industry, which lobbies for harsh penalties that increase the volume of those arrested and jailed. 

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According to the Prison Policy Initiative, there are 330,000 people in state or federal prisons nationwide for drug offenses. Just ask recovering drug user Daniel Romero, 41, of East Los Angeles about the toll incarceration has taken on him and the cost to the rest of us. He has 25 felony convictions. “My 19 years in court and behind bars cost maybe $2 million,” he said.

From his time spent in and out of the system, Romero knows bail and jail intimately. He also understands that both bail and jail are profit centers for others determined to keep the present “war on drugs” penalty system working to their financial advantage. 

One such profit center is the U.S. bail bond industry (BBI). The industry does $2 billion of business annually, according to the American Civil Liberties Union and Justice Policy Institute. That is real money, with chunks of it being made available via campaign donations and lobbying to shape criminal law policy and the votes of lawmakers. Tracking these political and commercial ties reveals what criminal justice rhetoric tries to conceal: 

The bail industry, along with other powerful forces such as prison guards and private prison companies, invests extensive resources in promoting legislation that leads to mass incarcerations. This is especially true for drug offenses that disproportionately harm nonwhite and poor communities. 

To the degree that the public is even minimally aware of how moneyed players in the prison-industrial complex push for extensive and harsh arrest laws, it is usually the private prison industry and prison guard unions that are pointed to as playing the lead roles in this nasty game. Job-protecting police unions and war-on-drug agencies play strong support roles. The role of bail bonders is virtually invisible to the public.    

But the BBI has grown into quite a political force over four decades even as their individual operations are largely obscured behind contrasting popular images of mom and pop bail bonds storefronts or less-than-friendly outlaw bounty hunters. Currently, it is pushing conservative legislation by courting politicians via bipartisan campaign donations and lobbying efforts. It also plays a visible role in the American Legislative Exchange Council (ALEC) - an influential right wing national group significantly funded by the oil magnate and far-right wing Koch Brothers. ALEC creates and then promotes “model legislation,” including, most famously, the controversial Stand Your Ground gun law and attacks on public employee unions. 

One dramatic example of recent BBI activity is in the realm of pretrial services. These services mitigate jail and prison overcrowding through pretrial release based on factors other than one’s ability to post money bail, such as a detainee’s offense record, drug history and employment status.  

The bail industry has targeted such “no-bail-required” practices for hammer blows along with other modern reforms. These reforms tend toward reducing drug possession charges from felonies to misdemeanors that require no bail and favor treatment rather than jail. Many experts and the public at large regard these reforms as more sensible and more effective.   

Other than the generalized and vast legalized political corruption and vote selling that results from the need to obtain campaign funds in America, there is no specific pattern that describes the many politicians who crash their own principles under bail industry pressures. These pols occupy the racial, ethnic, gender and regional spectrum. If you are stuck believing the paradigm that Democrats offer a progressive alternative to the drug war’s brutal mass incarceration policies - as opposed to Republican ideological commitment to being “tough on crime and drugs” - think again. In a time which demands alternatives to drug war decimation of nonwhite communities, many Democrats across the country line up alongside Republicans to collect, with California, Florida and Texas as the top three BBI donor states.   

Furthermore, in poor nonwhite districts that lack robust economic resources to support progressive change, we have historically seen a wedding of politicians’ campaign piggy banks to bail bonds industry interests. This keeps many nonwhite politicians beholden to the status quo and surprisingly opposing liberal reforms. Accordingly, communities most affected by the drug war lose a real place at the bail and prison alternatives table.  

In fact, voters are given mixed messages by the Dems' reform rhetoric which pushes watered-down initiatives that, in fact, continue status quo criminalizing, policing, arresting, detaining and bailing for often quite minor drug and parole violations.

This influencing BBI money flows from arrested individuals’ pockets, as detained drug offenders and others - often charged with minor crimes - scramble to make bail by any means necessary, even at the expense of their own family's security. Then, taxpayer dollars pay the bill for courts, jails, police and prisons. On that spending note, the Great Recession hammered local and state budgets and brought reform-minded attention to the so-called criminal justice system. But how much is really changing?  

BBI STYLE REFORM

California enjoys a liberal reputation, but it is unclear why when it comes to criminal justice issues. The state, for example, led the way in “three strikes and you do life without parole” legislation, now partially repealed because of its devastating effects on many lives. 

Consider that last November, Gov. Jerry Brown, Jr., a Democrat, vetoed an important bill, SB 649, initiated by the Drug Policy Alliance and introduced by Sen. Mark Leno (D-SF).  The bill, which was adamantly opposed by BBI as well as by elements of the pro three-strike complex of guards and prison-industry companies, would have allowed judges and prosecutors to reduce the criminal penalty for simple drug possession of small amounts from a felony to a drug “wobbler” (the choice of felony or misdemeanor charges, with prosecutor and court discretion). It would also have given judges and prosecutors discretionary authority to send defendants to treatment centers, probation or community service. 

“This bill would allow possession of heroin or cocaine to be charged as a misdemeanor instead of a felony,” Brown declared misleadingly in a veto message fully in accord with other strong support Brown has provided for prison-industrial complex issues over the last year as he goes into an election year determined to amass a campaign treasury that dwarfs competitors.  

Brown’s other stated reason for the veto was improper timing. Citing another bill making its way through the state legislature, Brown declared: “We are going to examine in detail California's criminal justice system, including the current sentencing structure.” Critics charged that Brown simply caved to law enforcement interests such as the BBI and punted the issue to a process whereby such interests would have more influence over final policy decisions. 

“The governor let down the people of California, the majority of whom support going even farther than this bill would have gone,” said Lynne Lyman, California state director for the Drug Policy Alliance. “The vast majority of voters agree with the experts - locking up drug users is stupid, unproductive, cruel and expensive.” Later, in a phone interview with The Fix, she added:  “Up to 10,000 more people will serve time in state prisons this year.” 

(The Fix asked Brown spokesperson Daniela Dabel to comment on the bail amounts and bail fees these pretrial detainees face because of the Governor’s veto. Dabel declined to do so.)

As Michelle Alexander’s  bestselling book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012), reports, in the drug war nine out of ten arrested drug offenders are black and Latino, far outstripping their number in the general populace where, percentage wise, studies have shown that more whites use more drugs more frequently than minorities. Further, felons do the time long after they do the crime; they face a lifelong fate of second-class citizenship. Depending on the state in which they reside, they are ineligible for a range of government help including food stamps, housing, student loans, temporary cash assistance and voting. Brown’s veto ensures that this year alone, 10,000 more people, disproportionately people of color, face some elements of this fate.

SB 649 was specifically designed to mitigate this racial – and racist - discrepancy. 

In California, Brown is hardly alone in protecting the industry. Recently convicted (for voter fraud and perjury) and then suspended State Senator Roderick Wright, an African-American, earlier accepted $3,000 from the BBI and introduced pro-BBI legislation that would increase the number of defendants applicable for bail if they applied to the court for an electronic monitoring program. In a conversation with The Fix, Maggie Kreins, president of the California Bail Agents ( CBAA) and herself a bail bonds company owner, said the CBAA supports Wright’s bill and opposes bills that reformers want that requires no-bail be posted for low-level defendants who accept monitoring. 

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 michrenee@gmail.com

Seth Sandronsky is a Sacramento journalist and member of the freelancers unit of the Pacific Media Workers Guild. Email sethsandronsky@gmail.com

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