Regulating Commercial Bail in California Through Consumer Protection Law

Abstract

Bail bond companies act as gatekeepers to freedom for thousands in California every day. Yet despite their ubiquitous role in our criminal justice system, the current framework regulating the commercial bail industry almost exclusively monitors the relationship between bail companies and the state, but fails to mitigate the wide-ranging variety of harms that bail agents can and often do inflict on their customers. In large part, this is because existing policies frame defendants simply as criminals, erasing their simultaneous position as consumers soliciting a commercial service. As a consequence, consumers who make use of the commercial bail bond system, largely poor individuals of color and their families, remain vulnerable to a system ripe for abuse. This paper presents a novel way to frame the interaction between a bail bond company and its customer as a fundamentally consumer interaction that should, as countless similar goods and services are, be governed by a consumer protection framework. This regime would adequately protect individuals who utilize bail bond companies from abuse and generally encourage a well functioning commercial bail industry. This paper provides an avenue for pursuing claims against abusive bail bond companies and suggests policy changes to create a better commercial bail industry. In doing so, this paper argues (1) that commercial bail companies offer a service that can and should be regulated by currently existing consumer protection law; (2) that although no such cases have yet been brought in California, consumers of these bail services can and should bring suit against bail companies for violations of state and federal consumer protection laws; and (3) that despite the availability of such claims, new legislation specifically tailored to the industry is urgently needed to ensure a properly functioning industry free of exploitation and abuse. Part I of this paper summarizes the process of pretrial detention and bail in California. Part II describes the commercial bail system in California, illuminating the context in which consumers of bail services find themselves. Part II then summarizes qualitative research conducted with 35 individuals in order to describe the variety of harms consumers of bail services often endure. Part III surveys existing consumer protection legislation for consumers seeking relief, focusing primarily on the federal and California fair debt collection practices acts (FDCPA, and CFDCPA), the California Legal Remedies Act (CLRA), and the California Unfair Competition Law (UCL). In Part IV, the paper addresses the broader regulation of the commercial bail industry, focusing on the areas that existing protections may not be able to reach and describing the possibility of enacting new legislation specifically tailored to these deficiencies.