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We’re in a transitional moment, akin to the period in the 1980s when email was edging its way into the mainstream but not yet ready or able to replace the U.S. Postal Service. Certainly it’s far too early to conclude that money bail is obsolete. Indeed, as a conditional form of pre-trial release, money bail is a relatively hands-off way to preserve one’s freedom: Pay it and your obligations have mostly been met. Just remember to show up in court when summoned!
In other forms of pre-trial release, where behavioral conditions replace financial ones, that’s not always the case. In a July 2012 op-ed that appeared in The New York Times, law professors Dan Markel and Eric J. Miller noted how judges made one defendant write daily book reports and another purchase flowers for his wife as conditions for their pre-trial releases. In such instances, the professors concluded, the judges were essentially applying “punishments or moral education techniques” before the defendants had been convicted of a crime.
In other words, if you can afford bail, it might be your first choice—at least until mechanisms are put in place that keep judges from engaging in moments of premature adjudication. And if you can’t afford bail, you should have other options.
That the traditional bail bond industry seems uninterested in expanding or improving those options hardly seems surprising—that’s standard operating procedure for any legacy industry with a proven business model to protect. But its preference for the status quo is no reason to ban it or other commercial parties from the domain of pre-trial release. Instead, bail reformers should be encouraging additional private competition. After all, the primary purpose of pre-trial release is to place checks on government power. Fostering companies whose profits come from keeping people out of jail is a great way to do that.