By Brandie Burris. Full Text.
Bail is not a fine, and it is not a punishment. In theory, bail serves a simple goal: it ensures an accused defendant will appear at their criminal hearings. Yet, as practiced, the American bail system is insidious. Bail bond agencies exploit their grossly unequal bargaining power, depress consumer access to comparative information, employ contracts with terms unreasonably favorable to the company’s interests, and conceal extreme contract terms in confusing legal jargon. As a result, common bail industry practices trap consumers in debt cycles under unconscionable bail bond contracts simply because families cannot afford the cash bail payment needed to maintain their loved ones’ pretrial freedom.
For decades, the bail industry’s forceful lobbying tactics have largely blocked legislation seeking to regulate the industry or eradicate it entirely. The industry’s well-financed lobbying campaigns succeed by framing and distorting public perception to ensure harmed consumers are viewed narrowly as dangerous or likely guilty “bad guys” while bail agencies are viewed as “heroes” or scrappy small businesses surviving on thin margins in service of greater civic and public safety aims. It is under this enduring narrative that the for-profit bail bond industry has marched itself into its current reality: an underregulated and nearly risk proof industry which amasses an estimated $2 billion in profits annually by subjecting American consumers to physical, emotional, and financial harm.
This Note argues state laws prohibiting unfair or deceptive acts or practices provide a powerful path to curb bail industry abuses; however, private litigation alone is an incomplete solution. Public enforcers like state attorneys general are well-suited to bolster recent private litigation efforts to regulate and control bail industry abuses at a systemic level. This Note concludes state attorneys general hold both a moral imperative and the legal authority to investigate and litigate consumer abuses perpetuated by bail bond companies under a consumer protection legal theory.