ALBANY – Last January, Jay Bernardo lost his father Bill, the man who started the family’s bail bondsman business and for nearly 60 years was known in courtrooms from Albany to Plattsburgh.
A year later, he could lose their profession.
Bernardo, president of the Bernardo, Goldstein & Quinn bail bondsman agency that Bill Bernardo founded in 1962, estimated that business dropped 80 to 90 percent since New York’s bail reform went into effect on Jan. 1.
The changes enacted in last year’s state budget leave defendants accused of most non-violent felonies and most misdemeanors ineligible for bail or to be held in jail as they await trial. The changes were championed by Gov. Andrew Cuomo and legislative leaders as a way to spare poor people from remaining in custody because they cannot afford bail. But for the bail industry, the changes are a potentially lethal blow.
Bail bondsmen, also known as bail agents, depends on bail to exist. They pay for a defendant’s bail and, in return, receive a fee set by law.
Bernardo, who doubles as president of the New York State Bail Bondsman Association, met with lawmakers at the state Capitol last week to try to impress on them the need to change the law or temporarily put a moratorium on it. He said he would be willing to join a task force to address the issue.
Bail agents, he noted, simply execute decisions set by judges.
“Everyone in the bail industry has got to look for alternative sources of income right now,” Bernardo told the Times Union on Wednesday. “You have got to pay your medical and your rents and whatever employees you have left. Most of the agencies in New York state have whittled down to bare minimums. People have had to be let go. People that saw, in a lot of cases the writing on the wall, left. One of my best agents, he saw the saw the writing on the wall and he left.
New York is home to some 212 bail agents who have more than 2,000 employees, Bernardo said.
“This is happening throughout the state to make allowances for the drop in revenues,” he said. “I don’t know if anybody feels bad for the bail bond industry but there are people that we employ that had a tough Christmastime.”
“A lot of people hurting now.”
The bail bond business in the U.S began more than century ago and remains the primary way prisoners pay bail set by a judge after an arrest. It can be a lucrative business. Bail bondsmen generally charge a percentage of the bail they put up. Often, defendants or their families put up collateral including homes or other assets that can be lost if the suspect runs.
New Jersey passed bail reform in 2017 but unlike New York’s version, judges in the Garden State have discretion to hold defendants they deem a danger to the community. Even there, Bernardo noted, reform has hurt businesses.
Referring to a conversation with a colleague, “I asked one day, ‘What happened with a certain agency that was a large New Jersey agency and they say said, ‘They own a couple of restaurants now. ‘”
Bernardo’s company, which operates in the Hudson Valley, Capital Region and Adirondacks, is also involved in the insurance business.
Jeff Clayton, executive director of the American Bail Coalition, a trade association that includes bail insurance companies that underwrite criminal bail bonds, called New York’s bail reform law fundamentally flawed.
“What’s happening in New York is probably going to help us everywhere else in terms of, people aren’t going to want to go down this bail reform road,” Clayton said.
Clayton, a Colorado attorney, said in most states that have enacted bail reforms — he mentioned New Jersey and New Mexico as examples — cash bail was eliminated but prosecutors could request preventative detention of potentially dangerous defendants. He said such states have replaced bail agents with government employees supervising defendants on release which, according to Clayton, has been extremely costly.
Asked if he has seen bail reform such as New York’s version elsewhere in the country, Clayton said, “Not like this … nobody has gone to this point where we just, for a handful of offenses we’re going to allow bail. Nobody has done that. This is the most liberal reform I’ve ever seen.”
He said New York’s bail reform “won’t be a complete death sentence, but yes., you’re looking at 75-80, 90 percent reductions in certain counties.”
He estimated New Jersey’s bail industry is down 95 percent.
“In New Jersey, the business was lost to detention and release,” he said. “In New York, it’s just being lost to release.”
Advocates for bail reform have argued that the old system penalized low-income defendants who languished in jail pending trials while charged with non-violent crimes. Wealthier defendants facing the same charges, they noted, remained free because they or their family had the financial means to pay the bail figure.
“This created a situation in which innocent people were incarcerated simply because they were poor,” said Albany Law School Emerita Professor of Law Laurie Shanks, a longtime defense attorney. “The people who were most severely impacted are those in the minority community. Incarceration harms not only these individuals and their families but society as a whole. People lose their jobs, lose their home and risk the loss of their children.”
Shanks added: “While I am sympathetic to those in the bail bond industry for the loss of their income, this is similar to the changes in the regulation of payday lending, pawnshops, and other industries that have a disparate impact on individuals based on income.”
Clayton said the advocates miss the fact that judges can access defendants. He did not entirely dismiss their arguments. He said the case of Kalief Browder, who starting at 16 spent three years in jail on New York City’s Rikers Island accused of stealing a backpack — a case that was later dismissed — was “bad.” Browder committed suicide at 22. Browder’s case was a focal point for advocate who pushed for the elimination of cash bail, noting Browder languished in jail because he could not pay the $3,000 bail.
“There are a lot of reforms in New York that should have been done,” Clayton said.
Defendants who are eligible for bail have the possibility of low cash bail, secured bonds and unsecured bonds. With an unsecured bond, the defendant merely needs to sign a document promising to pay the money in the event the person does not show up. No money is required.
Such agreements are “as worthless as the piece of paper they’re written on,” Bernardo suggested.
“If you’re talking to somebody who doesn’t have a job, who has been in jail, is indigent possibly, even if they do have a little job, what are you going after if the guy doesn’t show up?” he said.