Commentary: Why does Trump care so much about cash bail?

Earlier this week, Donald Trump identified another threat to “Americans’ safety and well-being,” along the same lines as the threat that prompted him to send military vehicles and armed soldiers onto the streets of Washington, D.C.

According to Trump’s executive order on the topic, the purported threat comes from cashless bail policies, such as those implemented by Illinois and a few other states. Trump said he would institute a policy that government “resources should not be used to support jurisdictions with cashless bail policies.”

He ordered Atty. Gen. Pam Bondi to give him within 30 days a list of states and localities that have eliminated cash bail not only for “violent, sexual, or indecent acts,” but “burglary, looting, or vandalism.”

As has been the case with many of Trump’s other assertions about public safety, this one was delivered with a sizable helping of received fantasy but not a smidgen of evidence.

Individuals released without bail, Trump asserted, “are permitted — even encouraged — to further endanger law-abiding, hard-working Americans because they know our laws will not be enforced.” Police are “forced to arrest the same individuals, sometimes for the same crimes, while they await trial on the previous charges.”

Is that so? Not according to the U.S. Department of Justice, which reported in 2009 that the vast majority of defendants, whether out on bail or released on their own recognizance, show up for court dates. Nor do they go on crime rampages once they’re out on the street. The DOJ calculated that 83% of all felony defendants released before trial appeared for all court dates, and of the remainder, almost all returned to court within a year. Only 3% remained fugitives after that time.

Nor were most released felony defendants rearrested before trial. The largest ratio of recidivism belonged to robbers and burglars, 24% and 22% of whom were rearrested, mostly for misdemeanors.

Trump is advancing widespread myths about the bail system, however. The most pervasive misconception is that cash bail helps to suppress crime. There’s no evidence for that. In truth, there’s no evidence that supplanting a cash bail system with alternatives such as giving judges more leeway to assess the likelihood that defendants will skip out on their court dates contributes to crime rates. The evidence is almost all in the other direction.

A state court analysis in New Jersey found that “concerns about a possible spike in crime and failures to appear did not materialize” after the state reformed its pretrial release system in 2017. The Brennan Center for Justice of New York University, which compiled statistics from 33 cities — 22 that had reformed their bail systems and 11 that had not — found that “there is no reason to believe that bail reform has led to increased crime.”

Those results, the Brennan researchers noted, “suggest that policymakers’ recent focus on weakening bail reforms as a response to crime has been misguided — and a distraction from smarter and more promising ways to enhance public safety.”

Nevertheless, opponents of bail reform never fail to raise the specter of widespread mayhem if cash bail is eliminated. That was the case in 2020, when the bail industry mounted a multimillion-dollar campaign to overturn a California law ending cash bail for all but the most serious and violent crimes. The referendum asked voters to uphold SB 10, a bail reform law enacted in 2018 and signed by Gov. Jerry Brown. The anti-reform camp succeeded by a wide margin, 56.4% to 43.6%. (Those who wished to rescind the law had to vote “no” on the ballot measure.)

The anti-reform campaign played on the popular impression, fostered by courtroom procedurals on television (“Law & Order,” I’m looking at you), that fear of losing a bail bond is virtually the only thing guaranteeing that defendants will meet their court dates.

As I reported in 2019, as the debate over SB 10 heated up, that’s untrue. Studies showed that a large proportion of failures to appear are due to defendants’ confusion over court dates, difficulty getting time off from work or securing child care so they can make it to court, or other such factors unrelated to a desire to evade justice.

Those factors point to another feature of cash bail: It’s biased against racial minorities and the economically disadvantaged. A 2017 report by a blue-ribbon panel to then-California Chief Justice Tani Cantil-Sakauye — the impetus for SB 10 — found that the bail system “exacerbates socioeconomic disparities and racial bias.”

The system allows wealthy defendants to purchase their freedom by making bail; poor defendants are stuck in jail even on lesser charges because they couldn’t make bail that judges may deliberately set beyond their means.

This system magnifies their disadvantages. Beyond being stuck in insalubrious quarters, jailed suspects have less opportunity to assist in their defense than released defendants. They can lose their jobs or income while they’re incarcerated, and consequently face greater pressure to plead guilty even if they’re innocent.

Due to these and related inequities, as of the first quarter of this year, four out of five individuals in county jails in California have not been sentenced for their crimes. The ratio has been getting worse: In 2006, only 67.3% of county inmates hadn’t been sentenced and in 2019 it was 72.9%.

If public safety isn’t served by the cash bail system, who does benefit? The answer is Big Business.

The cash bail lobby loves to portray itself as sort of a cottage industry of mom ‘n’ pop operations devoted to serving the public weal, but that’s false. The business is dominated by insurance companies and others with a national footprint. Among the biggest contributors to the anti-SB 10 campaign were insurance carriers Bankers Insurance Co., AIA Holdings, Lexington National Insurance and American Surety Co.

Bail USA, a unit of the Crum & Forster insurance conglomerate, posted a web page during the 2020 fight labeled “Help Fight Bail Reform in California” and offering to match bail agents’ contributions to the campaign up to $500,000.

There’s no mystery about why big insurers like the bail bond industry. It’s incredibly profitable. Bail agents collect and upfront premiums typically of about 10% of the bail — $10,000 on a $100,000 bail. It’s nonrefundable, even if the charges are ultimately dropped or the defendant meets his court date.

Although bail is supposed to be forfeited if the defendant fails to show up, California laws have made it hard for courts to collect forfeited bonds from bond agents. In 2014, the California Department of Insurance reported that one bond insurer had collected $51.9 million in bail premiums in 2012-13, but paid out only about $588,000 for a loss ratio of 1.13% of premiums, and another had collected $51.2 million in that period and forfeited only $282,484, a loss rate of 0.55%.

Average loss ratios on auto insurance lines tend to run at about 60%-70% of premiums and about the same on homeowner coverage.

So there’s the bottom line. Trump’s ally against cashless bail would do nothing to improve public safety, but it would do wonders for big insurance companies’ business prospects.