Just nine insurance companies underwrite the majority of bonds issued in the U.S., fueling a for-profit enterprise that has “corrupted” America’s judicial system, charges the American Civil Liberties Union (ACLU) in a report released today in collaboration with the Color of Change organization, a nonprofit group which promotes racial justice.
These insurers, responsible for most of the $14 billion in bail bonds issued in the U.S. each year, “operate with little risk—even leading some of them to boast of going years without paying any losses,” said the report, entitled “Selling Off Our Freedom: How Insurance Corporations have taken over our Bail System.”
Most of the companies operate out of tax havens like the Cayman Islands and Bermuda, and “their executives operate far from the influence of the people and communities over whom they hold so much power,” the report said.
As a result, says the report, “The bail industry has corrupted our constitutional freedoms for profit: the freedom from exploitation in bail, the guarantee of being recognized as innocent until proven guilty, and the guarantee of the equal application of the law to all people.”
Alternatives to money bail have increasingly drawn the attention of criminologists and local authorities.
Another report, released this spring by the Public Policy Research Institute at Texas A&M University, which examined the effect of various bail strategies in two Texas counties, found growing support from Texas judges for an automated risk assessment tool that employs an algorithm to assign numerical risks to individual defendants, based on their previous criminal history and personal circumstances.
The report cited a 2016 survey that showed four out of five judges in 174 Texas counties admit they make decisions on bail based on information that is often “unreliable.” More than half said they would prefer some form of automated risk assessment to guarantee court appearance and prevent future criminal activity instead of money bail
The report, ordered by the Texas Judicial Council’s Criminal Justice Committee, compared criminal case data from the two Texas counties over a 3 ½ year period: Tarrant County, where pretrial release is dependent on financial bond; and Travis County, which uses a validated risk assessment to identify low-risk defendants without financial requirements for release.
Authors of the report concluded that the Travis County approach was not only fairer, but resulted in less cost to local authorities, with no impact on public safety
“When personal bond is automatic for low-risk individuals, financial ability is effectively removed as an obstacle to release,” the study said. “Ten times more people are freed on non-financial terms, and fewer people remain in detention because of inability to pay a low bond.”
The report made clear that “judicial discretion” remained key to bail decisions. But it cited the results of the survey, noting that fewer than one in give judges described the defendant data now available for their consideration as “very reliable.” Moreover, most (55%) named the lack of validated risk assessment instruments as a specific obstacle to informed decision-making
The statewide survey tabulated the responses of 605 judges representing 174 of the state’s 254 counties. (Over 1,900 were sent the survey).
The survey underlined the report’s key finding that “without risk information available, the financial bail system released 12% more potentially dangerous people and detained 24% more people who could have been safely released.”
Many jurisdictions around the U.S. already use a tool called the Ohio Risk Assessment System-Pretrial Assessment Tool (ORAS-PAT), which gathers objective information about each individual and generates a score indicating risk of flight or new criminal activity. But Travis County has introduced an automated Public Safety Assessment tool created by researchers supported by the Laura and John Arnold Foundation, which many say provides more reliable information.
While some criminologists have argued the tool has defects, the report said that it allowed Texas judges to “confidently” make more accurate custody decisions that allow for the detention of high-risk defendants and release of those who can be safely released.
The researchers said that in general, “the costs of a risk-informed pretrial release system are more than offset by savings that occur when defendants are properly classified.”
The study, entitled “Liberty and Justice: Pretrial Practices in Texas,” was prepared by Dottie Carmichael, Ph.D.;George Naufal, Ph.D.;Steve Wood, Ph.D.;Heather Caspers, M.A.;and Miner P. Marchbanks, III, Ph.D.—all of the Public Policy Research Institute at Texas A&M University.
The full Texas A&M report is available here.