Most people want the government to work as it was intended: by the people, for the people. But when it comes to the passage of laws that govern the lives of ordinary people, the influence of money and powerful business interests often outweigh the will of the people. At a time when public trust in the government is at an all-time low – in part because of how outside influences can manipulate lawmakers into pursuing problematic policies – Americans are losing faith in the lawmaking process. Lobbying – the lawful attempt to influence the actions or policies of government officials – is far too often guided by the perverse incentive of moneyed interests. We see these outcomes in housing and healthcare policy, budget allocations, and also criminal justice reform. 

Lobbyists for the commercial bail bond industry are a key player in this political money game. According to new reporting by the Center for Media and Democracy, paid lobbyists for the industry have long been working behind the scenes to influence state legislators to walk back cash bail reforms and attack the charitable bail organizations that provide a lifeline for many low-income individuals and families in need. 

ALEC and ABC Team Up

The American Legislative Exchange Council (better known as ALEC) is one such group of legislators and private sector representatives who draft conservative legislation on behalf of lawmakers and are aligned with the interests of the commercial bail bond industry. They’ve had a direct hand in the success of SB 63 in Georgia: the two Republican sponsors of the legislation are members of ALEC. The American Bail Coalition (ABC) is the lobbying body for the commercial bail bond industry that is bent on warding off charitable bail organizations – which they perceive as an existential threat, and simultaneously undermining progressive bail reform that would improve public safety, reduce unnecessary incarceration, and secure due process rights. In recent years, ABC has solidified a close companionship with ALEC and, by its own admission, has influenced 12 bills that strengthen the bail bond industry. It spent $1 million on lobbying in 2022 alone.

The bottom line for these two groups is not for the good of the people or social progress. It’s protecting their wealthy stakeholders: the surety agencies and for-profit bail bond companies who make money off of people who are ensnared in the pretrial system because they cannot post the cash bail that a judge has determined is sufficient to ensure their safe release and return to court.

People vs. Profit 

The bail bond industry these lobbyists work for, by contrast, seeks to maximize its profit by charging anyone they bail out a non-refundable fee of 10–20% of their total bond amount. Because charitable bail organizations like The Bail Project post bail and help low-income people get back to court for free, the bail bond industry views these organizations as direct competition to their revenue generation, and hence an existential threat to their continued operations – despite most recipients of charitable bail being too poor to even afford their fees. The private bail bond industry is so hellbent on disrupting charitable bail support that they even published a briefing document where they laid out their vision for legislating charitable bail organizations that provide free bail assistance out of existence. We can now see this vision borne out through policy making efforts in numerous state legislatures.

Seen in this light, it makes sense why ABC and ALEC have targeted charitable bail organizations. The provision of free pretrial support is a thorn in their ultimate agenda of extracting profit from low-income people ensnared in the cash bail system – a system that the bail bond industry is reliant upon and dedicated to maintaining, despite its harms. So they have adopted a no-holds-barred approach to salvaging their business: tossing millions of dollars into lobbying efforts, at the expense of individual rights and public safety. And, as this new report makes clear, mounting legislative attacks on charitable bail organizations through behind the scenes legislative influencing.

Most Americans want to reduce unnecessary incarceration. Instead of handshakes with ALEC and ABC, legislators should focus on working to build a criminal justice system where cash has no place and our rights are upheld.

With his veto on April 9, Gov. Beshear signaled he would neither be complacent nor stand idly by while the state’s elected representatives foolishly advance House Bill 5, a bill that will harm public safety. Make no mistake: the so-called Safer Kentucky Act, by further criminalizing homelessness, poverty and substance misuse, and attacking charitable bail funds, will ensnare countless poor and sick Kentuckians within an unrelenting revolving door of justice-system involvement that will destabilize them in the future.

The bill drew criticism from criminologists and both sides of the political spectrum in part because it offers a solution to a problem that does not exist – violent crime rates have been declining in recent years – and it wastes taxpayer dollars, with estimates suggesting that the bill will cost $1 billion over ten years. This latter point is something the governor mentioned explicitly in the public statement he released explaining his veto. The money spent on jailing could be otherwise used for preventative programs like outpatient drug treatment, supportive housing, and jobs programs that address the root causes of crime and help people avoid justice-system involvement altogether.

In stepping in to correct the path of the legislature, Gov. Beshear has chosen to protect the community safety of the Commonwealth – and proven he understands that incarceration should be a measure of last resort, not the default. The governor’s actions are also a testament to the unassailable reserve of the countless community activists and advocates who protested this bill in the first place. The reasons behind community opposition to this bill are obvious – and were apparently heard loud and clear by the Governor.

At The Bail Project, where I work, we are especially concerned with the bill because it attacks charitable bail organizations, which provide a lifeline to Kentuckians who are legally innocent but detained pretrial because they can’t afford to pay bail. The bill would prohibit charitable bail organizations from posting bail amounts of $5,000 or more and prevent them from supporting people charged with a variety of alleged offenses. This is like outlawing food pantries in the midst of a hunger crisis.

Evidence shows our work is both necessary and successful. Between 2018-2023, we provided free bail assistance court notifications, transportation, and referrals to supportive services like drug treatment and housing assistance to over 4,200 Kentuckians across 28 counties who returned to 91% of their court dates, laying waste to the idea that cash bail is necessary to ensure someone returns to court.

Lawmakers would like you to believe that charitable bail organizations are the problem, not cash bail itself. But that’s a ruse – cash bail is the single largest driver of unnecessary pretrial incarceration. In fact, nearly half of the 21,000 people in Kentucky jails are there because they cannot afford bail. This creates a two-tiered system of justice that uses wealth – not safety – to determine who is released pretrial.

When people are incarcerated because of bail amounts they cannot afford, they risk losing their jobs, homes, even custody of their children. Their health declines. Incarceration for as short as 48 hours increases a person’s likelihood of being arrested again in the future. For these reasons, many states and jurisdictions are doing away with cash bail altogether. By refusing to reform the cash bail system as a whole, and by scapegoating organizations like The Bail Project, Kentucky’s lawmakers doubled-down on a failed public policy that devastates communities.

Gov. Beshear has made clear that he is not willing to gamble the safety and livelihoods of Kentuckians for a short-sighted political win. We now await the legislature’s response and hope that they will see the governor’s actions for what they are: a refusal to follow the legislature down a misguided path towards unnecessary incarceration and needless suffering.

Outgoing Harris County District Attorney, Kim Ogg, has been anything but consistent on critical criminal justice issues. Her tenure as District Attorney – marked by an about-face on bail reform – looked dramatically different from the one she first ran to get elected eight years ago. 

The people of Harris County finally said enough is enough. By February 2024, Ogg’s approval dampened, with the majority of potential voters (61%) saying they viewed Ogg unfavorably. This turn in fortune, which many view as a referendum on Ogg’s political flip-flopping, sends a clear signal: Ogg’s reversal and ultimate rejection of cash bail reform is chief among reasons why the public turned their back on her.

When Ogg first came into office in 2017, the Harris County jail was crowded and falling apart, replete with reports of inhumane and dangerous conditions. As system stakeholders looked to identify opportunities for reform, cash bail – a primary driver of pretrial incarceration – became an obvious place to start. 

As a result of cash bail, people are unnecessarily incarcerated simply because they can’t afford to pay bail amounts set against them. When people are incarcerated on bail amounts they cannot afford, they risk losing their jobs, homes, even custody of their children. Their physical and mental health declines. A period of pretrial incarceration as short as 48 hours increases a person’s likelihood of being arrested again in the future because of how destabilizing incarceration is. Compared to people released pretrial, those incarcerated on excessive bail face worsened case outcomes and are more likely to plead guilty to crimes they believe they are innocent of. 

Ogg acknowledged the harms of cash bail as a candidate in her first election, promising to “support bail reform at every level” and reduce the number of “poor people in jail simply because they don’t have the money to bond out.” These messages resonated with the public and she won her first primary in a landslide. Ogg’s initial victory marked a new era for more impartial prosecution in Harris County. With the public and politicians signaling that they were ready for change, Ogg had a very clear mandate: deliver on her promise to limit the use of money in our criminal justice system.  

In a well-functioning pretrial system, safety, not wealth, should determine who is incarcerated pretrial. But when cash bail exists, a two-tiered system of justice persists: one for the rich, and another for everyone else. Cash bail is incongruent with a system grounded in the presumption of innocence, equal justice under the law, and due process – this is something Ogg knew, but eventually chose to ignore.

After a federal judge ruled in 2019 that the bail setting procedures in Harris County were unconstitutional and officials settled a class action lawsuit by limiting bail for people charged with misdemeanor offenses, Ogg became publicly critical, claiming erroneously that bail reform is “associated with more crime.” She frequently appeared at the state capital to provide testimony promoting harmful policies that would expand pretrial detention, while simultaneously obscuring the successes of bail reform in Houston. Ogg’s public opposition marked a turning point in her stance on bail reform – one from which she would never turn back.   

Ogg wound up on the wrong side of bail reform. According to the independent court-appointed monitor, bail reform has been a resounding success in Harris County. The entire misdemeanor system has shrunk. The Harris County reform has reduced racial disparities, decreased pretrial detention, and increased court appearance rates – all without new arrests increasing. Houston is altogether safer than before the reforms went into effect and should serve as a model for other jurisdictions to follow. And Harris County’s results do not stand alone – nearly a dozen jurisdictions across the country have also effectively reduced or eliminated cash bail without compromising community safety.

During her tenure, Ogg doubled-down on a failed cash bail policy, abandoning her commitment to reform. In choosing to do so, Ogg sealed her fate among the people of Harris County.

Image: Wikipedia HCDAO Comms CC BY-SA 4.0 

Despite all evidence to the contrary, if you’re watching politicians debate crucial issues of the day, it may appear that “bail reform” is a nuclear option that political parties either attack or avoid altogether. Splashy headlines during election seasons particularly highlight their differences, painting a picture of Republicans lambasting Democrats for supporting change in cash bail systems and Democrats quickly back-tracking from their voting records on the issue. 

But these moments do not accurately reflect the everyday political realities of bail reform. Many Republicans and Democrats agree that the cash bail system does not reflect American values, does not protect public safety, and needs change. 

The extraordinarily high, though often overlooked, costs of cash bail can equally shock both sides of the aisle. Cash bail creates a two-tiered justice system, splitting the criminal justice system into two separate and unequal processes: one for those who have money and one for those who do not. People who can afford bail return home to their families, jobs, and lives where they can prepare to fight their case from a position of freedom. People who cannot are left behind bars for the duration of their case — often lasting months or even years. During that time, they can lose their jobs and homes, be separated from their children, and endure the daily trauma that life in jail brings. 

This broken system undermines both conservative and liberal values, resulting in strong arguments for bail reform from both Republicans and Democrats. 

• Wealth-based detention undermines individual liberty: since pretrial release under a cash bail system sets a price tag for freedom, it keeps Americans behind bars simply because they cannot afford the amount set by an overreaching government.
• Cash bail systems risk public safety: the cash bail system releases anyone who can afford their bail amount, even if they pose a danger to the community.
• Incarcerating so many people pretrial is fiscally irresponsible: Taxpayers spend $14 billion each year to incarcerate legally innocent people. When factoring in the impact of pretrial detention on families, communities, and society, the true economic cost of this system has been estimated to approach $140 billion annually. 

• Cash bail practices violate Americans’ constitutional rights: As applied in many jurisdictions across the country, liberals often stress that common cash bail practices violate our rights to due process and equal protection, the prohibition against excessive bail, and the right to a speedy trial guaranteed by the U.S. Constitution – blatantly undermining the presumption of innocence.
• Low-income people cannot afford the price of their freedom: Cash bail amounts are often set at extraordinarily high amounts — in 2015, courts set a $10,000 median bail for people facing a felony accusation, while the median annual income for a person in pretrial detention that year was merely $15,109.
• Money bail disproportionately harms communities of color: Cash bail has particular consequences for people of color, whom the system gives higher bonds and detains at disproportionately higher rates, exacerbating racial injustice within the criminal justice system. 

Motivated by versions of the arguments above, policymakers in blue, red, and purple jurisdictions alike have enacted bail reforms. For example, in 2023, Illinois became the first state in the country to completely eliminate cash bail when it implemented the Pretrial Fairness Act to eliminate wealth-based differences in criminal cases. A few years earlier, deep in the heart of Texas, Harris County courts concerned by the potential constitutionality of cash bail decided to limit its use for misdemeanors, which has since reduced pretrial incarceration and improved court return and rearrest rates simultaneously. 

Despite agreement within the political parties that the cash bail system is broken, politicians continue to lob insults across the aisle around the issue. But policymakers must work together to find a solution when liberty is at stake. 

Fortunately, hope is on the horizon. The Michigan Legislature is poised to pass bipartisan bills (HBs 4655-4662) to reform their pretrial process into a fairer and safer system – an inspiring move that would encourage political collaboration across the country. It’s time to reimagine a world without broken cash bail systems, where freedom is truly free.

Last April, Raad Almansoori was booked in an Orlando jail and charged with assaulting and sexually battering a woman and then stealing her car. When Orlando’s 9th Circuit prosecutors dropped all but the car theft charges and reduced his bail in June, the 26-year-old was able to pay a for-profit bail bonds agent $2,500 to secure his freedom. Months later, Almansoori appeared to have fled the state, violating one of the conditions of his release. From there, he has been accused of repeated acts of violence against women across several state lines: He traveled to New York City, where he allegedly murdered a 38-year-old mom in a Manhattan hotel, and then he fled to Phoenix, Arizona, where he is accused of stabbing two women. Finally, in late February, he was apprehended and detained in Maricopa County.

The tragic case has drawn national attention, with Arizona and New York officials sparring publicly over Almansoori’s extradition. However, there is little to no discussion of the role played by the for-profit bail bonds industry. The hypocrisy of this rings loud and clear. Almansoori was only able to leave police custody in Florida because a bail bonds company stood to profit from his release.

Like many other states, Florida’s bail bonds agents are not subject to oversight from any agency working in the criminal justice system. Instead, the state’s Department of Financial Services regulates bail bond agent licenses as a business. Here’s how it works: A bail bonds agent will post a person’s bail in exchange for a fee, typically 10% of the total bond. These fees are nonrefundable, and the bail bond industry is estimated to collect as much as $2.4 billion in profit from these payments each year.

The vast majority of bail bonds agents engage in no process to determine whether an individual has a safe home to return to, a phone by which to receive court notifications or a ride to subsequent court dates. Their pursuit is profit, and that requires maintenance of the cash bail system. In essence, the courts are turning power over to a for-profit industry that allows bail bonds agents to decide whether a person will be released on bail pending trial. This eclipses a judge’s decision of whether to release or detain a person pretrial based on the facts of the case, rather than their access to money.

By contrast, criminal justice reform organizations, such as The Bail Project, have been tackling the issue at its root. By posting free bail assistance and providing pretrial support for nearly 30,000 low-income individuals and analyzing their rates of return to court, The Bail Project has shown that people return to 91% of their court dates without having any of their own money on the line. This evidence lays waste to the myth that bail and bail bond companies are necessary for the proper functioning of a justice system.

And yet, despite growing evidence that the cash bail system is fundamentally flawed, charitable bail organizations have come under increasing attack. So far in 2024, at least five states have introduced regulatory or restrictive legislation aimed at charitable bail funds. This comes in the wake of other states trying to pass similar legislation in recent years.

Meanwhile, market analysis of the bail bonds industry shows that it has grown 4.3% each year on average between 2018 and 2023. Today there are around 15,000 bail bonds agents across the country. Each year they bail out around 2 million people and rake in billions in profits while lobbying aggressively to expand the cash bail system and restrict charitable bail organizations.

The truth is, our pretrial system is largely dependent on a for-profit model that has rarely been called into question. Until we can move this conversation more productively toward systemic solutions and away from polarized debates, we are doomed to continue to shift blame onto judges, prosecutors and sometimes charitable bail funds. These individuals are treated as if they can predict the future and are held to a standard that one group — the for-profit bail bonds industry — is noticeably exempt from.

This op-ed originally appeared in the South Florida Sun Sentinel.

In 2019, Harris County officials settled a class action lawsuit that addressed the misuse of bail in Houston, which is the fourth-largest city in the United States. Since then, more people accused of low-level misdemeanor offenses have been released without bail while pending trial, safeguarding the presumption of innocence and mitigating the harmful impacts of unnecessary pretrial incarceration. 

Contrary to critics’ claims, the Harris County reforms have not created a free-wheeling, “let-them-all-out” system. The new rules allow for accountability and preserve judges’ ability to detain people when there is reason to. The changes are practical, in-line with the law, and good public policy. In contrast, the costly and ineffective policies of the past three decades have systematically violated due process rights and excessively relied on jails to address issues of public health and poverty, creating a revolving door of incarceration that exacerbates rather than solves underlying root causes.

Read the full op-ed, originally published in the Austin American-Statesman.

On any given day, more than 9,000 Oklahomans are sitting in jail. They are likely to be in a facility that has dangerous overcrowding or recently failed a health inspection. Or they may simply be in jail because their name falls at the bottom of the list for transfer to a state mental health facility ― like the person who recently had to wait over 1,000 days.

The jail population in Oklahoma has not kept pace with decreasing crime and arrest rates in recent years, leaving the state with one of the highest incarceration rates in the United States. How can this be? The answer lies in the pretrial system, according to a new report from the MODERN Justice Task Force, commissioned by Gov. Kevin Stitt in July 2023.

People charged with a crime in Oklahoma are spending more days in jail as they await trial, undermining the presumption of innocence. And Oklahoma is incarcerating its way through a public health crisis. Despite having the second-highest rates of mental illness and substance use disorders in the country, state funding for mental health services has declined by 11% over the last decade. The absence of effective treatment means people often cycle in and out of jail, adding fuel to the flame of the jail system crisis in Oklahoma.

But above all, the new report shines light on what we do not and cannot see when it comes to the pretrial system in Oklahoma. After a deep dive into the data systems and infrastructure, the task force found that each of Oklahoma’s 75 county jails is independently operated and has a mutually exclusive system of collecting data on the people it holds behind its bars. Think of it like a game of telephone, stretched across the state: Sometimes operators are speaking the same language, and other times they are speaking different languages entirely. But what gets lost in translation has immense consequences.

Without a centralized system, policymakers cannot connect the dots among jails and grasp the urgent challenges facing the pretrial system as a whole. On the flip side, a policy change implemented in a jail in one county that may be replicable across others remains hidden, out of sight. Yet, 71% of voters in Oklahoma want to see more done in terms of criminal justice reform, according to a 2023 poll by Arnold Ventures.

We can begin to address the multiple challenges that contribute to the thousands of people held in pretrial incarceration in Oklahoma ― nearly 70% of the total jail population ― only when we can clearly see those challenges in the full light of day. When we have comprehensive public data, we are bound to have better outcomes. It’s for this reason that the task force, in its report, recommends reforming pretrial data collection and reporting.

At The Bail Project, we know the importance of data. As so little data is collected about the pretrial population at large, our national database provides key insight into this under-researched population. One thing we know from our data is that if you provide supportive services, clients will return to court most of the time ― we’ve posted bail for over 29,000 clients, who return to court over 91% of the time.

Policymakers need good data to make good decisions. Consider the MODERN Justice Task Force report as the first piece of evidence. The task force has delivered in making plain the need for modernizing data collection and reporting through a centralized, statewide system in order to create community safety for all Oklahomans ― whether they live in Cimarron County or Oklahoma County. Now, we urge lawmakers to follow the evidence by legislating a bill to create such a system.

This op-ed originally appeared in The Oklahoman.

States and jurisdictions across the United States are ending their reliance on cash bail. Harris County, Texas – the home of Houston and third largest urban jurisdiction in the country – is one model of successful reform. In 2019, Harris County began allowing people charged with misdemeanors to be released back into their community without paying cash while they await trial as a part of a comprehensive set of reforms adopted under the O’Donnell consent decree. A court-appointed independent monitor was also set up to review and report on the reforms.

To better understand bail reform in Harris County, we spoke with the monitor, Professor Brandon L. Garrett.

As a social worker, I have spent my career fighting for a safer Kentucky, which is why I am fighting against the “Safer Kentucky Act”. Don’t let the name deceive you, this bill will not make Kentuckians safer – in fact, it will do the opposite.

The “Safer Kentucky Act” places harmful restrictions on charitable bail organizations and limits the availability of financial assistance that the poorest and most vulnerable Kentuckians rely on. While, those with money will continue to be able to buy their freedom – despite bail amounts or severity of allegations – those who are poor will remain incarcerated in already overcrowded jails – despite their American right to the presumption of innocence. This is why I testified in opposition to the “Safer Kentucky Act” during a Kentucky House Judiciary Committee hearing, alongside fellow community advocates, policy experts, and grassroots organizations. 

The “Safer Kentucky Act” cannot deliver on the promise of safer communities, and instead offers misguided solutions by limiting access to charitable bail, deepening divisions created by wealth-based detention, and fueling mass incarceration. 

The proven and attainable solution – addressing the root causes of justice-system involvement – is work already underway in our communities. The Bail Project, along with partners across the state, stand ready to work with legislators to achieve our shared goal of safety and justice for all Kentuckians. This is the fight for a safer Kentucky that I remain committed to, a fight that the “Safer Kentucky Act,” if it becomes law, will always lose. 

Every year, Ohio State and Michigan’s football game – better known as The Game to avid followers – arrives with national anticipation. Once ranked by ESPN as the biggest sports rivalry in the country, the stakes are, again, high: the winner will determine the Big Ten East line-up. But this time, Michigan has a secret weapon to beating Ohio – not necessarily on the field, but through their state house by passing bail reform.

Any Given Saturday

Across the country, 7 million people are sent to jail each year. On any given day, more than 60% of them are there because they cannot afford the cash bail amount required for their release before any conviction. Thus, cash bail creates a two-tiered system of justice, one where those who can’t afford the price of their freedom experience the horrifying realities of being behind bars and the collateral effects of incarceration — loss of employment, housing insecurity, and disconnection from family and community – and another for those with money, where they may never spend a single day in jail.

Cash bail also exacerbates racial disparities within the criminal justice system. Data shows that judges often set bail more often and at higher rates for people of color, particularly Black people. When comparing Black and white individuals in one study, Black defendants were more likely to be assigned bail, and on average, those bail amounts were $7,280 higher.

The economic consequences of cash bail are felt by everyone: taxpayers spend $14 billion each year to incarcerate legally innocent people. When factoring in the impact of pretrial detention on families, communities, and society, the true economic cost of this system has been estimated to approach $140 billion annually.