Bailing out the Bail System

It's time to rethink how we deal with defendants awaiting trial.

Every day in America, the personal liberty of thousands rests upon a technology originally created in the Middle Ages. No, not semi-automatic sporting rifles, those came later. I'm talking about bail. 

As early as the 11th century, Anglo-Saxon courts began letting persons accused of a crime avoid pre-trial detention in return for putting up some security—typically money or property—meant to guarantee their attendance when the court date finally arrives. More than 1,000 years later, the practice persists.

At a time when GPS-enabled ankle monitors can do the work of a hundred paparazzi hot on the scent of Kim Kardashian, we're paradoxically using bail more than ever. While pretrial release figures for state and local courts aren't regularly aggregated on a national level, the Bureau of Justice Statistics did release a report in 2007 based on a study that analyzed data for state court felony defendants in the 75 largest U.S. counties between 1990 and 2004. In 1990, this report showed, 53 percent of these defendants had financial conditions imposed as a requirement of their pre-trial release. By 2004, that number had risen to 68 percent.

And it's not just that bail is being used more frequently than it was 20 years ago. The Justice Policy Institute (JPI), a nonprofit pushing for bail reform, notes in Bail Fail, a report it published in September 2012, that average and median bail amounts are rising too. Between 1992 and 2006, the average bail amount increased from $36,497 to $55,500 (in 2006 dollars). In 2006, the median bail amount for felony defendants in the nation's 75 largest counties was $10,000.

Historically, financially secured bail has been an important tool in our justice system, a way to give genuine heft to the notion that persons accused of crimes enjoy a presumption of innocence. Likewise, the commercial bail bond industry, which helps defendants obtain release without having to put up their full bail amounts themselves, has also played a key role in the preservation of individual liberty.

Indeed, according to the American Bail Coalition (ABC), a trade industry group, the nation's 15,000 bail bond agents "transact an estimated 3 million court appearance bonds annually." Unfortunately, a much higher number of people, closer to 12 million, get booked into the nation's city and county jails now. (City and county jails are used to hold persons awaiting trial along with others serving sentences on misdemeanor charges. Persons who've been convicted on felony charges usually complete their sentences in state or federal prisons.)

That works out to around 735,000 or so inmates at any one time. Because 60 percent of them are simply awaiting trial, this means that right now there are roughly 441,000 people in America, equivalent to the population of Atlanta, who are stuck in jail even though they haven't been convicted of a crime.

Some of these people are not eligible for pre-trial release. Others who can afford to pay their bail amounts typically get out in a few days or less. Those who can't, and who can't obtain release through other means, can be kept behind bars for weeks or even months.

To make pre-trial release more equitable, JPI wants to "eliminate money bail" altogether. Failing that, it advocates "ban[ning] for-profit bail bonding companies." In either scenario, it wants to expand the usage of government-funded pre-trial agencies that release defendants on their own recognizance, often with conditional measures, such as wearing an electronic monitor or participating in a substance abuse program.

Naturally, the commercial bail bond industry opposes such suggestions. "Whether consumers realize it or not, there is currently a war being waged in the criminal justice system: a war being waged by government funded programs on a private industry," the ABC charged in a rebuttal to the JPI's reform efforts in a report entitled The War on Public Safety. In the ABC's estimation, pre-trial services that help "violent career criminals" obtain release "on nothing but a promise to return for their court dates" are "adversely impact[ing] our communities' public safety interests."

What such rhetoric conveniently sidesteps is that bail bond agents exist primarily to get defendants out of jail, too. For more than a century, they've been helping people retain their pre-trial freedom for nickels on the dollar. (Typically, bail bond agents charge a fee that equals 10 to 15 percent of a person's total bail amount.)

Now, however, with rising bail amounts, a large portion of the market cannot afford bondsmen. Either that, or the industry isn't interested in serving lower-dollar customers. Say you're stuck in jail on charges so minor that a 10 percent cut of your bail will yield only $20. Say your dear devoted mother lacks sufficient collateral to secure your bond. In such cases, many bail agents will likely take a pass.

When markets go underserved, innovators inevitably step in to offer solutions. In this instance, there are compelling reasons to do so. For one thing, the cost of supervised pre-trial release programs is much cheaper than the cost of keeping inmates in jail—approximately $2 a day versus $50 to $150 a day. Equally important is the fact that there's no legal reason to tie pre-trial release to a person's financial status: What's at issue is whether or not a defendant poses a danger to the community if released, and to what degree he's a flight risk.

Granted, financially secured bail is a mature technology with a long track record of relative effectiveness. According to the 2007 Bureau of Justice Statistics report, 26 percent of the defendants it tracked from 1990 through 2004 who were released on their own recognizance failed to appear in court when due. In comparison, only 18 percent of those who were released via surety bond (i.e., a bond administered by the commercial bail bond industry) skipped bail.

But rival technologies are evolving rapidly. The electronic monitoring devices of 1990 can't compare to the electronic monitoring devices of today. The risk assessments that judicial officials can use to predict how defendants will respond if released on their own recognizance are far more sophisticated than the questionnaires of old.

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.