Private Bail Agents Hold the Line of Criminal Accountability as Reformers Use Covid-19 to Cause Greater Social Panic and Unrest

Covid-19 Get Out of Jail Free Card – A New Low for Activists

In the latest move to remove accountability from the criminal justice system, reformers and activists have taken to using the Covid-19 pandemic as their new soapbox to advocate for the mass release of defendants currently held in jail – a move they say will reduce the spread of the virus.

On March 18, the ACLU issued a letter to federal and state officials which “demands the release from prisons and jails” criminal defendants due to Covid-19.

On March 24, the Pretrial Justice Institute, the organization currently going through a “transformation” after leading the charge to advocate for the use of biased risk assessment tools in jurisdictions across the country, calls the pandemic “an enormous opportunity” that could be a “turning point” for their movement.

As we continue to read the trove of articles about bail reformers now calling for the immediate release of all persons in jail due to Covid-19, we have to think the impacts of that would be even bigger than what we have seen in New York with their failed bail reform that even during the crisis officials are still discussing.  This potential dismantling of accountability for those charged is misguided and creates a public safety crisis – on top of our current crisis.  Yet, as many a commentator have stated, including most recently Rahm Emanuel, “Never let a good crisis to go to waste.”

The impact of embracing these calls for releases and the loosening of arrest authority is already showing the ugly side of kneejerk reactions to stem the spread of Covid-19.  In Johnson City, New York, an accused drug dealer was arrested with 9 ounces of heroin, 6.2 ounces of crystal meth, crack cocaine and over $21,000 in drug proceeds was released without charges due to New York State court restrictions in response to the coronavirus.  In American Fork, Utah, a convicted felon was arrested after allegedly breaking into a woman’s home, tying her up at knifepoint, and threatening to kill her while holding her hostage after being released early from a halfway house over concerns of the Covid-19 pandemic.

During these unprecedented times, we have news for the bail reform activists: THIS IS NOT THE TIME TO SCORE POLITICAL POINTS AND MAKE THE CRISIS WORSE THAN IT ALREADY IS.

In response to the concerns of the spread of Covid-19, we feel confident that jails will strike the best balance based on local conditions and considerations of due process.  In fact, we’re seeing this already.  In Dekalb County, Georgia, jail officials have taken steps to protect inmates and correctional officers, including; stopping inmate visitations, increased screening of inmates and staff for flu symptoms, temporarily suspending all volunteer programs and church services, and making preparations to quarantine any inmates that may end up testing positive for Covid-19.

This latest wave of calls to release defendants comes as no surprise and we would encourage local jurisdictions not to listen to bail reform activists.  These are the same groups who for a generation have encouraged nationally the use of pretrial risk assessment tools that they now say are racist and lock more people up.  They are also the same groups who for a generation advocated for preventative detention policies, which would now stop the very releases they advocate for due to the virus by denying the right to bail altogether.

State governments from around the country agree that bail agents are a key part of the system, with many state and local governments specifically enumerating that bail agents are an essential function under the various laws of state and local jurisdictions.  That makes sense— from our services flows the defendant’s right to exercise their state and federal constitutional right to bail by sufficient sureties.  Essential indeed.

Private bail agents from the around the country are still posting bails every minute of every day.  More importantly, we are now dealing with the thousands of defendants who have upcoming court dates that are in question.  We are dealing with the unrest of families who need to know when their loved one is going to have to go to court and what is going to happen.  We are dealing with unrest in court systems, some of whom are prepared to operate in such crises and many of whom who are not.  We are aiding clients in need and helping them navigate this temporary new norm.

As defendants have court dates cancelled or court is closed, the system bends further into chaos.  For many, we are their only contact they have in order to facilitate their return to court at the appropriate time.  It is also important to note that bail agents are bearing a substantial risk due to the crises—many jails won’t take absconding defendants right now, and the amount of time defendants will be out on bond will be substantially increased in many cases thereby increasing the risk.

Through all of this…we continue to look for ways to help balance the system as we have for over 200 years.  Many agents have reached out to their local jails to see how they can strengthen their public private partnership by providing aid and support to correctional facilities.

For private bail agents, the work doesn’t stop because of Covid-19, the Spanish flu, the swine, or any other challenge we face.  If we stayed home, thousands of defendants would remain in jail or be released with zero accountability.  If we stayed home, many defendants would abscond.  In fact, we will be picking up the pieces of this crisis for a long time after it is over.  So, while the end jailing movement attempts to use this crisis to wreak more havoc on society, cause public panic and sympathy, and unnecessarily make the jobs of local officials more difficult, we instead will continue to push forward in doing our part to maintain criminal accountability during a time of national unrest.

For local jurisdictions, we have one simple message: we are still here for you working 24 hours a day to do our jobs the best we can during this crisis.  We will not criticize you, and we hope you find the right balance for public safety as you deal with this situation.  No virus is going to stop us from doing our jobs.  Even during a crisis, we cannot simply check our constitutional rights at the door or dismiss criminal accountability for defendants.  Victims matter all of the time – not just when it’s convenient.  While we know there is an unprecedented effort to try and contain this virus that is impacting our lives in so many ways, we also know that this too shall pass, and we will not dodge our duty.

Rather than trying to fearmonger and score political points like bail reformers, we instead take our inspiration during this time from an old hymn: “Put your shoulder to the wheel; push along, Do your duty with a heart full of song, We all have work; let no one shirk. Put your shoulder to the wheel.”