Private Interest, Public Sphere: Eliminating the Use of Commercial Bail Bondsmen in the Criminal Justice System
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PRIVATE INTEREST, PUBLIC SPHERE:
ELIMINATING THE USE OF COMMERCIAL
BAIL BONDSMEN IN THE CRIMINAL
JUSTICE SYSTEM
Abstract: The decision to grant bail is the first contact that ajudge has with a de-
fendant. If a defendant is unable to pay the set bail amount, this inability affects
nearly every aspect of the defendant's case from beginning to end. Despite at-
tempts to ensure insolvency does not solely determine pretrial detention, the cur-
rent bail system, in many cases, ensures just that. Special interest groups, specifi-
cally the bail bond industry, oppose any reform efforts that aim to decrease the
use of money in the administration of bail. Defendants unable to afford a bail
bondsman can spend weeks, months, and sometimes years detained while await-
ing their day in court. Law and public policy compels courts to secure bail only
to the extent that it will guarantee a defendant's appearance in court. This Note
argues that in order to accomplish this, two important changes must occur. First,
commercial bail bonds should be eliminated in favor of a system in which cash
bail is not the default method of securing pretrial release. Second, all states
should establish and maintain pretrial services agencies that aid courts in making
bail determinations.
INTRODUCTION
By 2007, Florida's Broward County had seen an explosion in its jail pop-
ulation, resulting in illegal levels of overcrowding. To address this overcrowd-
ing problem, the county would need to spend between $60 and $70 million to
build a new jail.2 Rather than committing this large sum to building a new jail,
See Brian Haas, Study on Jail Overcrowding in Broward Spreads Blame, SUN SENTINEL (Ft.
Lauderdale) (Feb. 17,2007), http://articles.sun-sentinel.com/2007-02-17/news/0702160715_1_average-
daily-jail [https://perma.cc/3N7T-EG2T] (detailing the consistent overcrowding of Broward County jails
and placing blame on a justice system that leaves defendants in jail for long periods of time). With a
history of overcrowdedjails, a federal decree requires Broward County to provide abed for every prison-
er or risk fines. See Larry Lebowitz, Jail Crowding Heads to Court, SUN SENTINEL (Ft. Lauderdale) (July
14, 1998), http://articles.sun-sentinel.com/1998-07-14/news/9807140016 1_jail-lawsuit-jail-doors-
prisoners [https://perma.cc/G4JB-R2GK] (describing the 1995 federal order).
2 See Haas, supra note 1 (detailing the consistent overcrowding of Broward County jails); see
also David M. Reutter & Mel Motel, Bail Bond Companies Profit While Poorest Defendants Remain
in Jail, PRISON LEGAL NEWS (Sept. 15, 2012), https://www.prisonlegalnews.org/news/2012/sep/
15/bail-bond-companies-profit-while-poorest-defendants-remain-in-jail/ [https://perma.cc/78N3-3TUZ]
(noting that the cost of building a new jail was estimated to be approximately $70 million); Scott
Wyman, Pretrial Releases to Be Expanded, SUN SENTINEL (Ft. Lauderdale) (Jan. 16, 2008), http://
articles.sun-sentinel.com/2008-01-16/news/0801150478_1_pretrial-release-new-jail-release-program
1337](ViewImageLocal?handle=hein.journals/bclr57&div=40&collection=&method=preview&ext=.png&size=3)
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Private Interest, Public Sphere: Eliminating the Use of Commercial Bail Bondsmen in the Criminal Justice System
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