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The Tech Giants’ Misconceived Attack on Bail Bonds

10 May 2018

Walter Olson

his week Google and Facebook announced that they would stop accepting ads for bail-bond services.
It’s the perfect moral gesture for our times: It makes a
grand statement, keeps pressure groups happy, reminds us that the
tech giants have weight to throw around, and leaves its intended
beneficiaries no better and perhaps imperceptibly worse off.

Google’s official blog post trumpets its decision as advancing a cause. The
“issue of bail bond reform has drawn support from a wide
range of groups and organizations who have shared their work and
perspectives with us.” It quotes one such group’s
representative hailing “the largest step any corporation has
taken on behalf of the millions of women who have loved ones in
jails across this country.”

Refusing these ads is no
way to help people or reform the system.

Okay, I’ll bite. How does it help a woman with a loved one
in jail to refrain from calling to her attention the availability
of bail? If you were in such a situation, which would you rather
have — the phone numbers of open-all-night storefronts where
you could get your son or brother bailed out, or a tidy lecture
about how the whole institution of cash bail is unfair and needs to
be rethought?

Google also cites its ban on ads for “deceptive or harmful
products.” But once a judge has set cash bond in the first
place, it’s hard to take seriously a claim that helping
families meet that requirement must inevitably involve deceit or

Citing a report from a group whose primary focus (revealingly)
is general opposition to privatization rather than criminal-justice
reform specifically, Google claims that “for-profit bail bond
providers make most of their revenue from communities of color and
low income neighborhoods when they are at their most vulnerable,
including through opaque financing offers that can keep people in
debt for months or years.”

The first clause proves nothing at all. If most arrestees who
cannot post bail from their own resources are from low-income or
minority communities, then that is the market bail bonds are
destined to serve. As for the second, many bail transactions
involve no borrowing — and it’s not as if this little
market, dominated by mom-and-pops, lacks competition.

No, the point is more to confirm Google’s and
Facebook’s good standing with a certain school of moralistic
opinion. It’s a school that prefers to downplay the role of
genuine trade-offs and difficult issues of policy design in favor
of stigmatizing the presumed bad actors who stand in the way of

Trouble is, bail reform does involve such trade-offs and design

Bail gives judges a tool for cases where it’s not clear
how likely a suspect is to show up in court later. It thus
addresses a middle category: The most flight-prone suspects are
likely to be detained in any case, while low-risk cases get
released on recognizance or personal bond. Without this middle
option, judges may err on the side of caution by keeping in custody
persons who would have met bail otherwise. (This very thing
happened in some Maryland counties during that state’s
recent unplanned experiment with curtailment of
cash bail.)

Most informed students of the system have concluded that if bail
is successfully to be done away with, as it largely has been in
federal criminal justice as well as some localities, other
practices and devices need to fill its place, many of which fall
under the heading of pre-trial services. These may include aids and
algorithms to help judges assess risks of non-appearance, as well
as techniques of defendant monitoring that can include periodic
phone calls, electronic anklets, and so forth.

Although bail bonding is a rickety old American institution
— that’s one of the reasons it’s entrenched
— groups such as Color of Change and the ACLU like to portray
it as somehow foisted on us by polished tycoons of finance
capitalism: Behind the mom-and-pops, it is suggested, these faraway
hedge funders pull the strings. That’s part of a wider
narrative in which America’s extremely high incarceration
rate is supposed to be the outcome of Wall Street profit

Google itself plays into this theme, quoting its outside
activist as saying the ad ban is a rebuke to “all those in
the private sector who profit off of mass incarceration.”

Dearly loved though this narrative is on the left, scholars have
been poking holes in it for some time.

Thus popular writings vastly overestimate the size and influence
of the privatized prison sector. As Adam Gopnik wrote last year in the New Yorker
(yes, the New Yorker), citing the work of Fordham law
professor John Pfaff, “even if private prisons were banned
tomorrow and all their inmates released, the prison population
would drop by, at most, 8 per cent. The numbers just aren’t
there.” Another problem is timing: The rise of mass
incarceration preceded many of the commercial incursions.

Pfaff and others have pointed out that public-sector
beneficiaries of incarceration — including guards’ unions and
state entities such as those in California, which uses inmates for
firefighting — reap far more surplus from the current system,
and form a much more formidable lobby in its favor, than do private
prison firms.

It’s worth noting that some alternatives to cash bail or jail
time, such as electronic home monitoring, can themselves result in
substantial charges to defendants and their families, with
corresponding enrichment to service providers. This doesn’t mean
the substitute methods of monitoring and control are worse than
bail; they may in fact be better. It does mean that a simple
aversion to fee-charging may not take us all that far.

If one is going to be suspicious of mercenary motives in the
justice system, I recommend starting with the providers among whom
defendants’ families do not get to pick and choose in
their hour of need in a relatively competitive market. That would
include probation providers and jail phone-call providers —
and, yes, some firms involved with private prisons.

Of course, those companies aren’t big advertisers, since the
only customer they need to convince is the law-enforcement agency.
So Google and Facebook are spared the need to worry about what
posture to strike toward them. Convenient, that.

Walter Olson
is a senior fellow at the Cato Institute’s Robert A. Levy Center
for Constitutional Studies and the author of four books on the
American legal system, including The Litigation Explosion and The
Rule of Lawyers. He founded and writes one of the most popular law
blogs, Overlawyered. He has served as an editor at Regulation
magazine and frequently speaks on regulation, business, and the
policy climate.

Click here to view the full article which appeared in CATO Journal