Posted by Brendan Fischer on June 10, 2013

Republican lawmakers have squeezed a provision into the Wisconsin budget to reintroduce bail bondsmen (and bounty hunters) to the state, a corruptive practice that has been banned since 1979, faces nearly universal opposition from the state's criminal justice system, and is promoted heavily by the American Legislative Exchange Council (ALEC).

In the early hours of June 4, after an overnight session of closed door meetings and hours of debate, the Republican-controlled legislature's Joint Finance Committee voted along party lines to approve a package of budget items, from tax breaks for the rich to an expansion of taxpayer-funded private school vouchers -- and in the final motion, a proposal to allow for-profit bail bonding in Wisconsin and four other counties.

Since 1979, Wisconsin has been ahead of most U.S. states in banning commercial bail bonding, joining the rest of the world in recognizing that the practice warps the criminal justice system. Countries like England and Canada have criminalized the practice. Wisconsin's pre-trial release system, unlike 46 other states, is managed by courts and law enforcement rather than for-profit companies. But the budget bill would change that.

"Commercial bail bonds lead to corruption," Rep. Fred Kessler (D-12), a former circuit judge who led the charge to abolish the practice in Wisconsin in the late 1970s, told the Center for Media and Democracy last year. "And corruption is why we did away with it."

The progeny of the measure might be tied back to the ALEC. The American Bail Coalition (ABC), the for-profit bail bond industry's national organization and lobbying wing, calls ALEC the industry's "life preserver". ABC pays for ALEC membership, and a representative sits on the ALEC corporate board, as well as ALEC's Executive Committee. The trade group boasts that "during its two decade involvement with ALEC, ABC has written 12 model bills fortifying the commercial bail industry."

Sen. Leah Vukmir, the ALEC State Chair for Wisconsin and a member of the ALEC Board of Directors, met with the President and CEO of the American Bail Coalition, William Carmichael, at an ALEC meeting last month.

"Legal Loan Sharks"

Posting another person's bail for profit has a record of corrupting the sentencing process, and puts the decision of whether an accused person goes free in the hands of a profit-oriented business.

In Wisconsin, a person charged with a crime has their bail set by a judge, based on considerations of public safety and whether the person is a flight risk, and the accused pays the court directly. If the person shows up to court they get the bond returned (or can have it applied towards victim compensation), but they lose it if they don't.

Under the commercial bail bond system, it all comes down to money. A defendant pays 10 percent of the bail set by a judge directly to a private bail bond company as a "bond" that they will appear at the court date. The fee is non-refundable -- meaning that even if a person shows up to their court date and are found innocent, they lose the amount paid, which can be a significant loss for low-income defendants. If a person is found guilty, the amount paid in bail goes to a for-profit business rather than to victims.

Milwaukee County Chief Judge Jeff Kremers said that judges, not for-profit businesses, are in a better position to determine who should and should not be released before trial. Under the private bail system, "the decision is no longer up to a judge, it's up to some insurance type person who's thinking, 'Can I make money on this release?'" he said. The logic of the for-profit system "doesn't tell us anything about how dangerous (defendants) are. It just tells us how much money they have or their family has."

Some bail bond agents will set up payment plans for those who cannot afford the fee, but often at high interest rates that resemble the predatory practices of payday lenders and trap low-income individuals into a cycle of debt. And individuals are saddled with this debt regardless of whether they show up to court and are ultimately found innocent.

Milwaukee Police Chief Edward Flynn told the Journal-Sentinel that bail bondsmen are "basically legal loan sharks. And they prey on the poorest communities that already have had enough troubles."

For-Profit System Corrupts Criminal Justice

For-profit bail bond companies also have a strong incentive to influence or elect judges who are "friendly" to the industry: because bail bond companies collect 10 percent of whatever bail amount judges set, higher bail means higher profits, so the industry prefers judges who set high bail.

In December 2010, for example, former federal judge Thomas Porteus was impeached by the Louisiana Senate after an FBI investigation revealed he had been accepting "campaign contributions" and other kickbacks from a bail bond company in exchange for favorable treatment. Rep. Kessler said that corruption and kickbacks were common in Wisconsin before the practice was banned.

"It's not something professional law enforcement recommends, it's not something the judiciary recommends and it's not anybody who has a role in the criminal justice recommends. I don't understand the motivation," Police Chief Flynn said.

ALEC-Supported Effort Stretches Back Years

The motivation, clearly, is profit. And the industry, with help from ALEC legislators, has been trying to profit from Wisconsin's criminal justice system for years.

In 2003, Wisconsin Rep. Scott Suder (R) introduced a standalone bill to reinstate commercial bail bonding. Suder was a longtime ALEC alum and former co-chair of the ALEC "Criminal Justice Task Force," which at the time was also co-chaired by representatives of American Bail Coalition (then known as the National Association of Bail Companies). At the time, editorial boards from the Milwaukee Journal-Sentinel and the Wisconsin State Journal wrote in opposition to the Suder-sponsored plan. In response, ALEC board member and American Bail Coalition Chair William B. Carmichael wrote an op-ed in the Wisconsin State Journal defending commercial bail bonds. Carmichael also donated to Suder's campaign the previous year.

Almost exactly two years ago, when the Republican-led legislature was writing the 2011-2012 budget, ALEC State Chair Rep. Robin Vos squeezed a similar last-minute provision into the budget, prompting outcry from judges, prosecutors, and law enforcement. Governor Scott Walker vetoed the provision, declaring that such a major change to the state's criminal justice system should be enacted via a stand-alone bill without adequate public debate.

Just a few weeks ago, Sen. Alberta Darling, co-chair of the Joint Finance Committee, said she was hoping to avoid a repeat of what happened in 2011. If the proposal is so positive, it can and should be passed as a separate bill, she said. "I'll do everything I can to keep that out of the budget," Darling told the Milwaukee Journal Sentinel.

That obviously did not happen.

"I'm very disappointed that the people in the Legislature who are pushing this seem to be doing it without correct information [and] without complete information," Judge Kremers said.

Brendan Fischer

Brendan Fischer is CMD's General Counsel. He graduated with honors from the University of Wisconsin Law School.

Comments

Who are they? Who voted for the Bail Bonding Bill?

I read some rather ridiculous comments on bail bonds corrupting judges and denying people their freedom. If a judge seriously doesn't want a bondsman involved, he or she always has the option of setting a cash bond rather than allowing a surety bond. If a cash or property bond IS set, no bondsman is going to touch that with a ten foot pole. Also, when you pay a bondsman, you are paying for a period of freedom that otherwise will be denied you, unless you can meet what is often an exorbitant bond requirement.

This one of the most erroneous articles I've ever read. My wife and kids would be disheartened to hear that their husband and father is a loan shark and that he is involved in a corrupt business such as bail bonds. As a bail agent in Colorado for the last 35 years I've come to know quite a few bail agents and most are Christians with families. They contribute to their communities just like a postal worker or a secretary or whatever.

On the other hand I often hear on the news about a peace officer being in trouble for sexual assault, domestic violence or some other crime but we don't hold that against the other good peace officers. Colorado courts and Pretrial Services accuse bail agents of every evil thing they can think of for one reason. They want to take over bail so they can get the money to run their ever growing tax sucking system.

When was the last time ALEC actively promoted a bail bonds bill? This article implies that it still actively does so. Is that the case, or is SourceWatch just trying to make a non-story seem somehow sexy and relevant? I ask because, as another commenter here points out, without bail bonds a lot of poor criminal defendants would be forced to cool their heels in jail while awaiting trial, would they not?