Commentary

The Tech Giants’ Misconceived Attack on Bail Bonds

This 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 harm.

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 change.

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

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 maximization.

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.