Consumer Protection for Criminal Defendants: Regulating Commercial Bail in California

Consumer Protection for Criminal Defendants: Regulating Commercial Bail in California

Bail bond companies act as gatekeepers to freedom for thousands of people 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; it fails to mitigate the wide variety of harms that bail agents can and often do inflict on their customers. Existing policies frame defendants simply as criminals, erasing their simultaneous position as consumers soliciting a commercial service. As a consequence, defendant-consumers, often poor individuals of color, and their families, remain vulnerable to an often-predatory commercial bail bond system.

This Note proposes a novel way to frame the interaction between a bail bond company and a criminal defendant or arrestee: as that between a merchant and a consumer. As a consequence, this relationship can and should be governed by a framework of consumer protection laws. This framework, properly crafted and enforced, would protect consumers of commercial bail bonds from abuse and generally encourage a well-functioning commercial bail industry.

In an effort to encourage a less predatory and more beneficial commercial bail industry, the Note describes an avenue for pursuing claims against abusive bail bond companies and policy changes that could lay the groundwork for systemic improvement. In doing so, the Note argues (1) that commercial bail companies should be regulated by existing consumer protection law; (2) that 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 new legislation tailored to the industry is urgently needed to ensure a properly functioning industry free of exploitation and abuse.

Part I of the Note summarizes the process of pretrial detention and bail in California, illuminating the context in which consumers of bail services find themselves. Part I also summarizes qualitative research in order to help describe the variety of harms consumers of bail services often endure. Part II surveys existing consumer protection legislation available to consumers seeking relief, focusing primarily on the California Unfair Competition Law, the California Legal Remedies Act, and the California Fair Debt Collection Practices Act. Part II then analyzes their applicability to the commercial bail context. In Part III, the Note addresses the broader legal framework regulating 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 tailored to these deficiencies.



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