In their recent Science article, University of Minnesota professors Joshua Page and Joe Soss explore what they call the “predatory dimensions” of criminal justice, building on racial capitalism scholarship to tie together different extractive processes that transfer assets from communities to the state and private actors. We recently caught up with Joshua Page to discuss a particularly gendered aspect of criminal justice predation: the commercial bail bond industry. 

Gender Policy Report: Could you start by talking us through the framework of predation, and how you use it to understand the landscape of criminal justice today?

Page: It might be helpful just to start with how we began this project. It was shortly after the Ferguson report came out that described predatory policing—that was the term folks were using in Ferguson, Missouri—and it was at that time I was also conducting ethnographic research as a bail bond agent. 

Joe Soss and I started talking about Ferguson, and I was talking about what was happening in commercial bail, how bail worked and how the courts were doing very similar things and extracting resources through court fines and fees. At the time there was this burgeoning literature on monetary sanctions, and the more Joe and I talked about it, we realized it wasn’t all that much different from predatory lending and payday lending, you know? These all have in common that they target the needs and vulnerabilities and desires of low-income communities, particularly low-income communities of color, and extract revenues from them for both the state and private actors.

So we started to think, there seems to be something bringing all this together. And drawing on the literature on racial capitalism and other scholarship, we thought that this concept of predation brings all of these together in a similar analytical frame. 

Tell us more about the research you were doing at the time as a bail bond agent. 

There’s very little social science research on the bail bond industry, commercial bail itself. And, you know, it’s an incredibly important institution. Bail bond companies and agents in many ways hold the keys to the jail. They determine who gets out, for many people who can’t afford bail. 

At the time, people were talking a lot about the privatization of criminal justice and mostly focusing on prisons, but bail is one of the longest privatized entities in and around the criminal legal system. So much of the work on the sociology of punishment and so forth is on the back end, and on the front end it’s mostly on the police. There’s just been very little attention to [commercial bail], and it’s been around since the late 1800s, early 1900s.

When a person is arrested, in most states the court has the option to set bail for two legal purposes, which are to ensure that the person shows up for court and that they don’t pose a threat to public safety. The court has various options. They can release somebody on their own recognizance, which means they basically just have to sign something that says “I’ll come back and I won’t commit crime.” They can release them with conditions—so, all right, you’re released, but you have to check in with pre-trial services or a probation officer, or you don’t have contact with the alleged victim or don’t use alcohol or drugs. And then in addition or in lieu of the conditions, they can set financial bail, with the idea that if the person has to post bail then they’re likely to come back, because they have a financial interest in showing up for court. The colloquial term in this space is “having skin in the game,” but judges typically set bail without consideration of defendant’s ability to pay and often out of the reach of their ability to pay.

Those who can’t afford to pay the full amount to the court—say, $1,000—can try to work with a bail bond company that will post that bail with the court. The company will post basically a promissory note to the court for that $1,000 and then charge the defendant 10 percent of that, $100 in this hypothetical case, and then they’ll get the person out of jail. The person pays that $100 to the bail bond company, which is non-refundable, which goes to the bail company’s overhead and profit. If the person doesn’t show up to court, the court can forfeit that bail, and it’s up to the bail bond company to pay the $1,000 back to the court. And then the bail bond company tries to get the defendant and whoever has co-signed the contract with the defendant to pay back the bail bond company. 

 The role of the agent is primarily to write bail, meaning to sell a product—essentially to find clients that need to bail out and will work with the company to do so. For pretty much every bail there needs to be somebody to co-sign that takes responsibility for the bail along with the defendant. And so the defendant is really an entry point for access to that defendant’s friends and family on the outside, who become responsible for paying that 10 percent, as well as co-signing the contract and taking responsibility for paying it along with the defendant. 

Your 2019 RSF article with Joe Soss and Victoria Piehowski explores how cash bail is a predatory financial scheme that in many ways primarily targets women. How are these resource extractions “advanced through the gendered ethics of care and ordered by the gendered organization of care,” as you describe it?

I entered the field with very little knowledge of how this thing operated. But one of the first things I saw was that the vast majority of people who were in jail were men, which statistics suggest it would be, but the vast majority of people who were paying the premiums and co-signing were women. And then as I was in work meetings and talking with other agents, and particularly the owners, people were continually saying, “When the defendant calls, get mom’s number, get grandma’s number, get a wife.” The idea is that you need to get the information for the women in this person’s life, with the intuitive understanding that they would care enough to bail out the defendant.

I entered the field with very little knowledge of how it operated. But one of the first things I saw was that the vast majority of people who were in jail were men, but the vast majority of people who were paying the premiums and co-signing were women.

The people in the field had an intuitive understanding of the gendered ethics of care in our society, which socializes us all to feel like women should bear the primary responsibilities of care, whether that be caring for children, caring for the home, or caring for the jailed defendant. And it seemed to be a given to the [bail bond agents] that women were quite responsive and felt it was their responsibility to bail out the defendant. Everybody had this intuitive sense of who would feel the strongest obligation to care for the defendant through the posting of bail, and also who would be the one to actually “babysit” the defendant to make sure they actually went to court and protect the investment of the company. 

You also talk about how “predatory financial extraction within the bail industry is intersectional”—that is, it disproportionately targets women of color—”because the way that we organize care in the U.S. is intersectional.”

We’re talking about low-income defendants and potential clients of color, and so many of the bail bond agents were white, middle-class, steeped in these narratives around the culture of poverty and social disorganization among African-Americans especially. So there was a bias against clients, defendants, and potential cosigners. “Are they responsible or not?” is how it would get framed. But their gender would intersect with race to make it, “Get the moms, because moms are more caring.”

There is this trope of the Black matriarch as being restrictive, so there wasn’t just a blanket stereotype and discrimination of African-Americans as a whole, it was also gendered. So there would still be this sort of skepticism of certain groups, but because of gender and thoughts around care work in the African-American community—who does what, who’s more responsible, who’s more strict, make sure you talk to them—it’s even more imperative to talk to mom, to grandma, to auntie.

How does seeing women, and particularly women of color, as the primary targets of criminal justice predation change our understanding of the larger systems involved? And how should it shape how scholars, citizens, and policymakers respond?

First of all, it alters our understanding of who is “justice involved,” who’s involved in the criminal legal system. Often we typically talk about those who are arrested, incarcerated, put on supervision and so forth, but when we consider that there is this enormous population—again, primarily with women, often women of color—who’s brought into the bail process through these co-signing obligations, it really broadens our thinking about who is involved in the system.

Now we’re talking about a huge population that hasn’t even been accused of crimes that is experiencing an assortment of harms, because they are losing money—again, often low-income folks that don’t have extra income to spare—that have to then face trade-offs. Do you pay for rent or do you pay for the bail? And what does it mean to pay bail? Materially, it means experiencing social control of the bail bond company as well as potential harassment if the defendant doesn’t show up or if they’re on a payment plan. It could reinsert people into relationships they don’t really want to be in, but they feel an obligation to bail the person out. So it really increases our scope, not just how the system works but who’s involved in it and the harms associated with it.

It feels like there is new momentum, nationally, to elevate care work and recognize the economic value of care labor. Do you think these sorts of changes could have any spillover effects on the criminal justice system?

I’ve been pleasantly surprised at how receptive policymakers and legal professionals and so forth have been to this analysis. I think the more that political and public discourse promotes the value of care work symbolically and materially, and if those discourses can interact with the growing knowledge of the way that people and systems exploit caring obligations, the better. 

I hear a lot more than I used to about moving from harsh punitive and extractive bail to one much more based on care, which ties into restorative justice and so forth. What would a care-based model look like that’s also about meeting the official purposes of bail to begin with, which is justice and that people aren’t hurt, right? What does it mean to bring an ethics of care that helps generate that? 

What would a care-based model look like that’s also about meeting the official purposes of bail to begin with, which is justice and that people aren’t hurt?

One promising method comes from a group called Silicon Valley De-bug from San Jose. De-bug have been the leaders and founders of this model that they call “participatory defense.” They are very much a grassroots organization of folks that have been affected by and involved in the criminal legal system, and had a very clear insight of this phenomenon I was talking about in the commercial bail world, the fact that if you go to court you’re going to see family and friends, particularly women,  in the what they call “the pews.” I was focused on how the bail bond companies and bail bond agents engaged those folks in order to land a bond and make a profit, and what they said is, well, is there a way to work with those folks to make it so people can get out without financial bail, to change the system and make it less restrictive? 

So they formed a relationship with the public defenders in Santa Clara County. They started to go to court and interview family members about the defendant and about all the resources they could provide, and then they would provide that to the public defender to make the case that this person would have housing, these people would take responsibility, along with De-bug, and prompt the court to say this person is not going to be out alone. And that helped make it so people would get out with either less bail financial bail or no bail. And if the person was held on bail, they would create with the family members and friends these social biography packets that the defense could use later in the process to request a reduction of bail or so forth. 

You know, “end cash bail” is a hashtag, but what comes after is also really important, because you can get rid of cash bail and then have lots of pre-trial detention and electronic monitoring that people are often charged for, and that’s another extractive mechanism. I think that De-bug really supports the argument of just how deep the gendered ethics of care are, but also that those can be tapped for the positive.