Putting a price on prisoner release: The history of bail and a possible future of parole
| Author | Shadd Maruna,Dean Dabney,Volkan Topalli |
| DOI | 10.1177/1462474512442311 |
| Published date | 01 July 2012 |
| Date | 01 July 2012 |
| Subject Matter | Articles |
Punishment & Society
14(3) 315–337
!The Author(s) 2012
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DOI: 10.1177/1462474512442311
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Article
Putting a price on
prisoner release: The
history of bail and a
possible future of parole
Shadd Maruna
Queen’s University Belfast, UK
Dean Dabney
Georgia State University, USA
Volkan Topalli
Georgia State University, USA
Abstract
In this article, we argue that the history of bail foretells the future of parole. Under a plan
called the Conditional Post-Conviction Release Bond Act (recently passed into law in
three states), US prisoners can secure early release only after posting ‘post-conviction
bail’. As with pre-trial bail, the fledgling model would require prisoners to pay a percent-
age of the bail amount to secure their release under the contractual responsibility of a
commercial bail agency. If release conditions are breached, bounty hunters are legally
empowered to seize and return the parolee to prison. Our inquiry outlines the origins of
this post-conviction bond plan and the research upon which it is based. Drawing on the
‘new penology’ framework, we identify several underlying factors that make for a ripe
advocacy environment and set the stage for widespread state-level adoption of this plan
in the near future. Post-conviction bail fits squarely within the growing policy trends
toward privatization, managerialism, and actuarial justice. Most importantly, though,
advocates have the benefit of precedent on their side, as most US states have long
relied on a system of commercial bail bonding and private bounty hunting to manage
conditional pretrial release.
Keywords
bail, bounty hunters, new penology, parole, privatization
Corresponding author:
Shadd Maruna, Director, Institute of Criminology and Criminal Justice, School of Law, Queen’s University
Belfast, 29 University Square, Belfast, BT9 5FU, UK.
Email: s.maruna@qub.ac.uk
In 2007, the actress Lindsay Lohan famously lost control of her Mercedes-Benz
convertible and ran the vehicle up a curb. Police found cocaine in the car and
arrested Lohan for driving under the influence. Her bail was set at $25,000
(Van Gelder, 2007). Subsequent arrests (a public altercation with a member of
her personal staff, possession of cocaine, driving with a suspended license) pro-
duced additional arrests and monetary bail stipulation ranging from $20–40,000. In
February 2011, the actress was caught stealing a $2500 necklace. This time, her bail
was set at $40,000 (Cieply, 2011). In each of the above cases, Lohan had no prob-
lem posting bail and securing her freedom pre-trial.
Despite these personal troubles, the young celebrity was certainly lucky in one
regard: 70 percent of defendants subject to monetary bail between $25,000 and
$50,000 are not able to post bail and end up serving their pretrial detention period
in jail. One in five of such persons are ultimately acquitted of the crime or have
their case dismissed but serve jail time anyhow (Cohen and Reeves, 2007). In other
words, ‘Those with financial means are able to purchase their freedom, while those
without financial means lose their liberty during a period when they are presumed
innocent’ (Clark, 2007: 31).
The primary option for people in trouble with the law who do not have access to
Lohan’s personal wealth and connections is to turn to commercial bonding agencies.
Such third party entities can issue a bail bond whereby the individual secures his/her
freedom in exchange for a non-refundable fee of around 10 percent of the bail
amount plus collateral (real estate, automobiles, etc.). Under this contractual
arrangement, the bonding agent makes a ‘guarantee’ to the court that the accused
will attend his or her court date(s). The standard contract grants the bonding
agent near total control over the accused person’s freedom, authorizing the agent
or his/her designee to monitor, detain, and/or terminate the arrangement (i.e.
re-incarcerate) at will. In the event of a breach of contract, the bonding agent usually
relies on a network of private ‘bounty hunters’ to locate and return to government
custody those who try to abscond. Only two other countries in the world (Philippines
and Liberia) have comparable systems of commercial bail bonding (Devine, 1991).
The US system of commercial bail has numerous domestic critics, however.
Both the American Bar Association and the National District Attorney’s
Association have long advocated its abolishment. Forty years ago, the legal scholar
Ronald Goldfarb (1965: 4) wrote:
The [US] bail system is to a great degree a socially countenanced ransom of people
and of justice for no good reason. It is an unworkable and unreasonable abortive
outgrowth of historical Anglo-American legal devices which worked once in a far
different time and place and in a far different way.
Scandals involving collusion between commercial bonding agencies and mem-
bers of the criminal justice system have led four states – Illinois, Kentucky, Oregon
and Wisconsin
1
– to abandon their commercial system of bail (Liptak, 2008).
Nonetheless, the use of commercial bail bonding is increasing in those jurisdictions
316 Punishment & Society 14(3)
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