Criminal Justice

Bailing out the Bail System

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

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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.  

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  1. What, no Chico’s Bail Bonds?

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      1. You’re doing pretty well. Could you lend me some money to make bail?

  2. “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 ”

    FOR PROFIT? The horror, the HORROR.

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  3. Jonathan Mardukas: No, I don’t have to do better than that, because it’s the truth, I can’t fly: I suffer from aviaphobia.

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  4. Won’t someone think of the bounty hunters? Especially Dog, the Bounty Hunter?!?

    1. What about Ice, the Bounty Hunter?

  5. the scent of Kim Kardashian

    Jesus… I’m eating here.

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    1. Todd’s story and your son’s story both suck

      1. Judging from the amount, Todd’s bail must have been about $50,000.

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  8. 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.

    I thought that only the second ‘issue’ was a valid one for bail determination. The first ‘issue’ sounds awfully like “protective custody” as utilized in the Third Reich (i.e. determination of “dangerousness” without full adjudication of the charge(s)).

  9. What you are missing is that most defendants do NOT go to trial. They plea bargain and forfeit their bail or bond. A private bondsman keeps the money you pay, regardless of what happens to your case. Also, even if you use a private bail bondsman, the court charges a fee to “supervise” the contract. That fee is NOT refundable. So even if you do go to court and are found not guilty, that money is the government’s to keep. And with hundreds of thousands of people doing this every year . . . these aren’t small dollar amounts.

  10. up to I looked at the receipt ov 7467, I didn’t believe that…my… sister woz like they say truley taking home money in their spare time on their laptop.. there friends cousin haz done this less than twenty three months and as of now cleared the loans on their cottage and purchased Mazda MX-5. I went here, http://www.wow92.com

  11. The bail system imposes no real burden on the state though. In fact, as analog2000 points out above, it can actually be a nice little cash cow. Particularly in small communities, you’d be talking about a fairly substantial infrastructure build up to use monitoring instead (yes, Virginia, there are actual people living in actual towns in that inconvenient expanse between New York and L.A.). The monitoring could be outsourced, of course, but if a bail bondsman doesn’t want to put up 2 grand to make 20 bucks off your bond, what makes you think a company is going to want to sink a substantially larger capital investment to make 2 bucks a day off your new anklet? I can’t muster a whole lot of perturbation for this issue. Bail seems to work fairly well, and I like it better than an ever-larger surveillance state.

  12. Anna. although Richard`s artlclee is nice, last monday I bought themselves a Mercedes after making $7877 this munth and-just over, 10 grand this past-munth. this is really the nicest-job I’ve ever had. I actually started 4 months ago and practically straight away began to bring home over $78… per-hr. I work through this link http://www.wow65.com
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  13. If you think Ernest`s story is exceptional,, five weaks-ago my sister in law got a cheque for $8481 grafting sixteen hours a week from their apartment and they’re friend’s step-sister`s neighbour has done this for nine months and got more than $8481 part-time from there mac. follow the tips at this address, http://www.wow92.com

  14. Email in the 1980s? It existed, of course, but nobody but a few scientists and military people were using it. Perhaps you meant the 1990s?

  15. monitors can do the work of a hundred paparazzi hot on the scent

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  25. The constitutional right to bail is an essential component of our criminal justice system. It gives meaning to the presumption of innocence and recognizes the importance that those charged with crimes should not be necessarily jailed until they have been convicted and sentenced. The intended purpose of bail is to ensure that people appear in court. But it has become a form of mass internment lacking the meaningful foundation of due process. The bail system across the country has the effect of punishing the poor, mostly minorities, while putting many defendants at a distinct disadvantage in obtaining a resolution comparable to those who are released. EL Paso Bailbondsman TX

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