A new report breaks down how America’s for-profit bail system perpetuates the racial bias that drives the criminal justice system and traps Black people in the poverty cycle.

Released today (May 11), “Selling Off Our Freedom: How Insurance Corporations Have Taken Over Our Bail System” was created by advocacy group Color of Change and the American Civil Liberties Union’s Campaign for Smart Justice.

Millions of people put up cash to secure a bail bond—typically 10 percent of the assigned bail plus fees—each year to avoid sitting in jail while waiting for the courts to decide their guilt or innocence. This report says that in many cases, they are paying the world’s largest insurance companies—and they are are cleaning up to the tune of about $2 billion each year.

The report says this is a relatively new development; two decades ago, most people arrested for felonies were released without bail. Today, those same people are confined in jail when they don’t have the resources to pay into the system, or they turn to bail bond corporations and risk entering a vicious debt cycle fueled by high interest and fees. And the report authors say that race is key, with bias creeping into the decisions on who has to pay for freedom and just how much it will cost them.

“Big insurance is raking in huge profits by putting a price on people’s freedom,” Rashad Robinson,* executive director of Color Of Change, said in an emailed press release. “Like payday loans, bail bonds are a predatory practice that traps Black families and poor people in debt. For too long, the corporations that reap massive profits from this unjust destruction of our communities have been allowed to operate unchecked. When taxpayers foot the bill for needlessly locking up poor people before trial, the government is essentially subsidizing a racist, unnecessary and outright dangerous industry. This report makes it clear: our justice system cannot be fair until we end for-profit bail.”

Here are three key takeaways from the report:

A lot of people are jailed while awaiting trial. In 2015, people were booked in local and county jails 10.9 million times, and on any given day, there are 440,000 people being detained without conviction. They account for 70 percent of the people in those jails.

Illustration: Color of Change and ACLU

Bail is expensive. The median bail levied for someone accused of a felony is $10,000. Meanwhile the Federal Reserve says that nearly half (46 percent) of Americans would be in trouble if they had to cover an unexpected expense of just $400.

Bond grantors are literally the gatekeepers of freedom. From the report: “The American Bar Association was clear whose interests come first: ‘It is the bondsmen who decide which defendants will be acceptable risks…. Decisions of bondsmen—including what fee to set, what collateral to require, what other conditions the defendant (or the person posting the fee and collateral) is expected to meet, and whether to even post the bond—are made in secret, without any record of the reasons for these decisions.’”

The authors close the report with recommendations for reform:

  • States should abolish the for-profit bail industry. Elected representatives must end the bail insurance industry’s financial hold on millions of Americans each year.
     
  • Where for-profit bail continues, state and federal regulators, attorneys general, and legislators must immediately investigate the industry and conduct ongoing oversight. Further investigations will bring more stories to light, create a greater understanding of the perverse and harmful operations of the industry, and expose unethical activity.
     
  • Judges and prosecutors should reevaluate their practices of assigning unaffordable bail amounts and consider instead release on one’s own recognizance or, where appropriate, reasonable non-financial conditions of release. Where courts order money bail, they should rely on unsecured bonds rather than profit-motivated surety bonds.
     
  • Legislators and public officials should respond to communities’ demands and work to create a stronger and fairer criminal justice system that neither depends on money bail nor supports it.
     
  • Corporations interested in operating ethically should take a close look at their business ties and investments and cut any ties to the bail industry.


Download the full report here.

*Rashad Robinson is a former board member for Colorlines’ publisher, Race Forward.