The United States is one of two countries with commercial bail bondsmen, the other being the Philippines. It’s an unusual system, and a problematic one, in that it allows private businessmen to decide whether defendants whom the law presumes are innocent will go to jail or walk free until their trial. One result is that potentially dangerous people who can convince a bail agent of their ability to pay are released. Cherise Fanno Burdeen, director of the Pretrial Justice Institute, called them “these dangerous guys who pay money to bondsmen, get out and go shoot cops.” Meanwhile, people who can’t  pay are locked up, even if the alleged offense is minor and they pose little risk to the public. In England and Canada, what American bail bondsmen do is actually a crime.

The bondsmen, though, argue we need more bail, not less. Specifically, as the Marshall Project’s Alysia Santo reports in the Washington Monthly, they along with the American Legislative Exchange Council are advocating for a system of “post-conviction” bail.

Under this system, the judge requires people who have been convicted to leave some amount of money with the court. To get it back, they have to complete their sentence, whether that involves through rehabilitation, working with a probation officer or paying a fine. If they don’t have the money, they have a choice between going to jail or paying a fee to a bail bondsman to put up the money for them. 

The bondsman is then on the hook. In order to get the money back from the court, the bondsman supervises the defendant to make sure he or she keeps her word, acting as a kind of private probation officer.

The council has also proposed allowing inmates to buy these bonds. After serving part of a sentence, an inmate might be offered the chance to put up a bond in exchange for an early release. The bondsman then becomes the parole officer, keeping the inmate under supervision.

Since 2007, Mississippi has allowed judges to require defendants to take out these bonds. South Dakota and Michigan have passed similar laws.

Mississippi officials told Santo that the system allows them to be sure that convicts obey judges, since bail agents are compensated for keeping track of the people they’ve written bonds for. As a result, the reasoning goes, judges are more willing to hand down sentences that don’t involve prison.

That might be a better outcome for everyone, said John Pfaff, a law professor at Fordham University. He also pointed to a program in Hawaii that has demonstrated how the threat of jail can lead even hardened addicts to attend treatment and clean up.

Still, Pfaff added that this argument for post-conviction bonds assumes that the state can’t pay for public parole officers to ensure that convicts follow the rules. The profit that bail agents take amounts to a tax on poor defendants to help fund the court system, he said.

“Why are we making the defendant pay for this?” Pfaff asked. “What makes me queasy is the very regressive nature of the tax imposed is here.”

There might be an even more serious problem for the bail industry: the Constitution, which puts the post-conviction business model into question. The Supreme Court ruled in 1983 that a court cannot send a convict to jail simply because he is unable to pay the fine he’s received.

“If the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection,” Justice Sandra Day O’Connor wrote. “But if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically.”

In other words, if you can’t pay back your probation bond after making a reasonable effort, then the bondsman and the court can’t use the threat of jail to get the rest of the money from you.

What counts as reasonable is crucial here. There might be some defendants who have nothing in their bank accounts but have a steady income and can pay off a bail bond easily enough over a few weeks by cutting back on their expenses. For the most part, though, it seems like the reason you would need a bail bond in the first place is that you’re being asked to come up with money you just don’t have. Santo describes the case of Kristina Howell, who pleaded guilty to drunk driving and gave a bail agent $155 to pay her fine:

Howell went to the nearest pawnshop and hocked her engagement ring and a gold necklace from her baptism. During her frantic search for money, electricity bills had piled up. The Internet was shut off. But a few days before her final court date, Howell scraped together the rest of what she owed, mostly by borrowing from friends.

The fine was $1,044. Howell was employed as a waitress and earned $300 a week. She paid the money, knowing she’d go back to jail if she didn’t, but what she went through to come up with the money seems at least arguably unreasonable.

“There may be a constitutional problem with the whole system,” said Ron Wright, a law professor at Wake Forest University. “You’re enforcing the financial arrangement with the threat of sending someone to prison.”

Wright said that many judges in the criminal justice system seem unaware of the Supreme Court’s stance on the issue of payment. The Justice Department’s recent report on the courts in Ferguson, Mo. described how many defendants were jailed when they proved unable to pay fines.

One reason that defense attorneys don’t challenge these practices more frequently is that each case is unique, Wright explained. While any single fine might be reasonable for most defendants, they add up quickly if someone pleads guilty to more than one offense and has to pay several fines on top of a fee to a bail agent. That makes it difficult for public-defense lawyers to identify good test cases.