In another win for well-connected right-wing interests, Wisconsin Rep. Robin Vos (R-63) squeezed a last-minute provision into the budget on Friday, June 3 that moves Wisconsin towards re-introducing bail bondsmen (and bounty hunters) to the state, a corruptive practice that has been prohibited since 1979. Like much of the dairy state’s recent legislative activity, this latest effort is smudged with the fingerprints of the American Legislative Exchange Council and well-funded lobbying interests.
Judicial Corruption and Commercial Bail-Bonding Go Hand-in-Hand
“Commercial bail bonds lead to corruption,” says Rep. Fred Kessler (D-12), a former circuit judge who led the charge to abolish the practice in Wisconsin. “And corruption is why we did away with it.”
Private bail-bond companies benefit when judges set higher bail. Under the privatized system, a person charged with a crime pays the bail-bondsman 10 percent of the bail set by a judge –- the higher the bail, the higher the profits. There is a strong incentive to influence or elect judges who are "friendly" to the bail bond industry, and a long list of successes. Last December, 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.
According to Milwaukee County District Attorney John Chisholm, the return of the practice to Wisconsin "will primarily benefit out-of-state interests, the large bail-bond corporations" motivated "purely by financial interests" at the expense of public safety. "Bail-bond companies have no direct interest in what happens once a person leaves jail," Chisolm says, as long as they get their fee. Commercial bail-bonding will also place unnecessary financial burdens on low-income residents and, according to most experts, actually increase jail populations.
And little evidence suggests the practice saves taxpayers anything. The industry is very profitable, though, with significant political connections and clout.
Bail Bond Basics
Since commercial bail-bonding was banned in 1979, Wisconsin’s pretrial system has been managed by the courts or local government. 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. (A judge can also release a person on their own recognizance.) A person who skips their hearing forfeits the bail and the state issues an arrest warrant. The court or local government keeps the fees paid, and depending on the severity of the offense, law enforcement will conduct a manhunt or arrest the person the next time they are stopped. If the person appears at court, the amount paid is refunded, minus court fees, providing a financial incentive to show up. Chisolm says Milwaukee County has also been exploring ways to "get money out of the bail process altogether," using evidence-based practices "to determine who should not be released and who can be released under supervision," with necessary intervention to keep persons from reoffending.
Under the commercial bail bond system, a defendant pays 10 percent of the judicially determined bail directly to a private bail-bond company as a "bond" that they will appear at the court date. The fee is non-refundable -– 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. Those who cannot afford to lose the 10 percent fee, or for whom the bondsman does not accept, stay in jail. Some bail bond agents will set up payment plans for those who cannot afford the fee, but often at high interest rates that, according to Chisholm, "resemble the predatory practices of the cash loan industry" and trap low-income individuals into a cycle of debt. If the person does not show up to the court date, the bail bond company is obligated to pay the full bond unless they can track down their “client” and bring them to court.
Enter the bounty hunters -- state-licensed private mercenaries who will hunt down bail-jumpers and bring them to court. In many states, bounty hunters can break into homes without being constrained by the Constitution’s pesky warrant requirements, temporarily imprison the accused, and move detainees across state lines without extradition approval.
The bail bond industry is fabulously profitable and a major lobbying force, pushing laws that support their business and opposing alternative pre-trial release programs at the state level. That lobbying power may have something to do with bail bondsmen across the country not paying states the required bail forfeiture when “clients” jump bail; according to Kessler, Wisconsin had the same problem when bail-bondsmen were in the state.
Bail Bonds, ALEC, and Wisconsin
The American Bail Coalition is the commercial bail bond industry’s national organization and lobbying wing, and plays a major role in the American Legislative Exchange Council (ALEC). ALEC is the national organization that, with input from and approval by Big Business, drafts “model bills” for conservative legislators to introduce in their states.
“When I went to the ALEC website and saw their bills on bail-bonding, I had a hunch it would be coming here,” Kessler said. “When I saw that they were hiring lobbyists, I knew they would be moving on this.”
The State Chair of ALEC in Wisconsin, Rep. Robin Vos (R-63), introduced the budget provision in Joint Finance that paves the way for bail bondsmen to return to the state. And the American Bail Coalition registered a second lobbyist in the state on June 1, just as the Joint Finance Committee convened.
Not the First Time
This is not the first time that ALEC-connected Wisconsin legislators have tried reversing the commercial bail-bond prohibition. In 2003, the effort was led by Rep. Scott Suder (R-69), a longtime ALEC alum and former co-chair of the ALEC “Criminal Justice Task Force,” which was also co-chaired by representatives of the American Bail Coalition (formerly 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 representative 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.
Commercial Bail-Bond Defenders
Despite the claims of Carmichael and Reps. Suder and Vos, research does not strongly support the efficacy of the commercial bail bond practice. Arguments strongly in favor of commercial bail bonds come from the usual suspects. For example, the reports referenced on the American Bail Coalition website were created by ALEC. Even a January 2011 article from George Mason University economist Alex Tabarrok supporting commercial bail-bonding is of questionable origin. Tabarrok is the Bartley J. Madden Chair of Economics at George Mason’s “market-oriented” think tank Mercatus Center and Research Director at the libertarian Independent Institute think tank. The Mercatus Center was founded and is largely funded by the Koch Family Foundations, and Charles Koch and another top Koch official sit on its Board of Directors. The Independent Institute has also received Koch funding. Among Kochs' many activities, they fund ALEC and top Koch officials sit on the ALEC board.
Costs to Taxpayers, Judicial Integrity
The commercial bail bond industry likes to claim the practice ensures defendants show up to trial "at no cost to the taxpayer." But this ignores the practice's other expenses.
Individuals who cannot afford to lose the bondsman's 10% fee will remain in jail at significant cost to the taxpayer (around sixty dollars per day). “Wisconsin saw a 5-6% decrease in its jail population” after commercial bail-bonding was banned in 1979, Kessler says, “and will likely see a 5-6% increase if the practice comes back.” Contrast this with Wisconsin's current system, where a person can front the money with the security it will be refunded when they appear at their court date.
For those that do skip court, a shift to private bail-bonds means that counties will no longer keep the bail forfeiture. And as mentioned above, many bail-bond companies never actually pay the state when their "clients" jump bail.
Additionally, under the commercial bail-bond system, the ultimate decision about whether the accused goes free is in the hands of a private business, which makes its decision based on economic concerns, rather than a judge, who considers whether a person is a flight risk or endangers public safety. Commercial bail-bond businesses make more money off granting bond to a higher-bail, higher-risk defendant than a person accused of lesser crimes with lower bail. John Goldkamp, a professor of criminal justice at Temple University, told the New York Times “it’s really the only place in the criminal justice system where a liberty decision is governed by a profit-making businessman who will or will not take your business.”
And when judges accept the bail bondsman’s kickbacks, the initial bail decision also gets distorted. Kessler gives an example of civil rights protestors arrested in the 1960s who were given high bail “not because they were a flight risk, but because it benefits the bondsmen.”
Wisconsin's New Motto: Backward
Since 1979, Wisconsin has been ahead of most U.S. states in banning commercial bail-bonding (46 states still use the practice), joining the rest of the world in recognizing the practice as illicit. Posting another person's bail for profit is criminalized in countries like England and Canada, and only dominates pretrial release in the U.S. and the Phillipines.
The return of bail bonds will have a disproportionate impact on Wisconsin's low-income residents, a population that has grown due to the economic downturn. Tim Murray, head of the Pretrial Justice Institute, says the commercial bail-bond system "favors those who have the money to purchase their release pending trial, while it punishes others before their trial — not for what they've been accused of, but because they lack the cash to purchase their freedom."
Poor defendants’ only option will be to redirect limited household resources towards bond services, rather than rent and food; even if they are found innocent, the money paid is lost (rather than refunded, as is the case under the current system). Spending on commercial bail bonds comes at the expense of those who have the least, at the point when they are most vulnerable, to benefit a very few. The payment to the bondsman is also a de facto "penalty enhancer," an additional fine that goes above-and-beyond the penalties assigned by law and by the judge, and one that applies regardless of whether one is ultimately found innocent or guilty.
"We don't need that in Wisconsin"
In the wake of a highly contentious state Supreme Court race (for an already politicized Court) and a hotly debated Dane County Circuit Court decision, Wisconsin's faith in its judicial system is at a low point. Commercial bail-bonding would introduce new opportunities for judicial corruption, or the appearance of corruption, further diminishing the public's faith in the judiciary. And with the state's recently passed concealed carry law, allowing bounty hunters to roam the state and enter homes without warrants may not be the best plan for public safety. And if a few innocent people are caught in the crossfire, their ability to recover against the bail-bondsman and bounty hunter will be limited, thanks to the recent cap on "punitive damages" (the compensation available in personal injury or wrongful death lawsuits intended to deter wrongdoing). Like the incentive to influence judges, bail bondsmen will have an incentive to write off collateral damage to innocent citizens as a "cost of business."
According to former Milwaukee County District Attorney E. Michael McCann, "Wherever the bail bond system goes, it appears corruption goes with it. We don't need that in Wisconsin." At least some Wisconsin Republicans seem to share McCann's concerns. Republican Senators Glenn Grothman and Joe Leibham joined Democrats on the Joint Finance Committee in voting against Rep. Vos' proposal. The full legislature votes on the budget -- and the bail bond provision -- next week.
This article was updated at 10:45 A.M. with quotes from District Attorney John Chisolm.