As the pretrial reform debate heats up across the country, there has been no shortage of finger pointing, with most of it directed toward the private sector pretrial community—otherwise known as the commercial bail industry.
From jail overcrowding to budgetary challenges to ideological stances, the bail industry has been assigned the role of scapegoat for the ills of the criminal justice system by the public sector pretrial community.
But, rather than looking for someone to blame, the time has come to look at pretrial reform in a new way—one that provides solutions for everybody.
The debate between the public and private sector over pretrial detention has been raging for the past 50 years. The public sector position holds that defendants are innocent until proven guilty and should not be required to pay money to secure their release from jail.
Rather, the argument goes, it is society's responsibility to release individuals on their promise to return, because that is the fairest method.
On the other hand, the private sector position maintains that individuals are detained on the basis of probable cause and that pretrial release decisions must be made in the context of guaranteeing their appearance in court. The contention is that this can most effectively be accomplished by securing their release with a surety bond (or bail bond).
A great deal of research has been done on the effectiveness of each method of release. This includes government-funded research conducted by the Department of Justice, as well as privately funded research through organizations including the Justice Policy Institute, ACLU and American Legislative Exchange Council, along with educationally-funded research through institutions like the University of Chicago and the University of Texas.
What's missing from the research, however, are findings that indicate the public sector solution outperforms the private sector solution.
Indeed, every study conducted on the subject has shown that the private sector (commercial bail bonds) offers the most efficient form of pretrial release. Perhaps most significantly, commercial bail is the most effective at getting defendants to appear in court.
That being said, is commercial bail the complete “be-all, end-all” solution to pretrial reform?
Not at all.
It would be just as misleading to suggest that public sector solutions have no value. The reality is there is a vital role for both the public and private sector in the pretrial world.
In fact, the public sector pretrial service agency concept was designed to co-exist with the private sector solution. Developed in the 1960s, the idea was to have the public sector focus on handling persons classified as indigent or having special needs, while the private sector was to focus on everyone else.
In theory, this seemed to be the perfect private/public partnership. However, over the years, it has become anything but!
Today, the public sector pretrial community has expanded its reach beyond its designed purpose and is butting heads with the commercial bail industry. It definitely isn't because of the bail industry's poor performance. And it certainly isn't because the private sector is trying to take over the public sector's role of providing assistance for those with special needs.
So why is the public sector pretrial community undertaking an all-out assault on commercial bail with an apparent end-goal of its complete abolishment?
The ongoing offensive from this faction is a far cry from the initial intention of public sector pretrial services and represents a huge roadblock to the potential of any real private/public partnership that truly benefits the criminal justice system at-large.
Isn't it time that the pretrial community put more of a focus on achieving the social mission that they were designed to achieve, rather than assign themselves the task of assuring that defendants come to court?
Wouldn't it be more beneficial for the criminal justice system if those with private sector expertise teamed with those with public sector proficiency to focus on their strengths and complement one another?
There is an essential role for both social justice and criminal justice in our system.
Those in the private sector pretrial community will be the first to tell you that the public sector has developed a unique set of skills and resources that they do not possess. Specifically, their skills revolve around assisting defendants who are extremely low risk and/or have special needs. From completing mental health assessments, to enrolling individuals in substance abuse counseling and finding anger management assistance, public sector solutions can be far more effective than those provided by the private sector.
At the same time, the private sector has also developed its own unique set of strengths. Its skills and resources are extremely effective at assessing risk and ensuring the appearance of a defendant in court. If we can agree that both sides have essential qualities that add value to society, it only makes sense to bring both sides together to work in harmony.
While this concept might seem new to most, it is not.
On many occasions the commercial bail industry has reached out to the pretrial community to discuss a more collaborative existence and each time the invitation has been declined. It is time for both sides to put away their differences and find common ground.
That would be true pretrial reform.
Eric Granof serves as Vice President of Corporate Communications for AIA/ExpertBail. The AIA family of bail bond insurance companies has been partnering with agents across the country for over a century. Formed in 2003, AIA is an alliance of the industry's leading companies Allegheny Casualty, International Fidelity Insurance and Associated Bond. He welcomes comments from readers.