Bailing Out On Common Sense

By Mark Pulliam | Oct 15, 2018

This column first appeared Oct. 15 on Law and Liberty.

The bail system has existed in America since colonial times. It addresses a timeless problem: how to ensure the appearance of a criminal defendant at trial without the need for pretrial incarceration. Detaining all defendants prior to trial would be wrong; doing so would contravene the presumption of innocence and amount to punishment without trial. On the other hand, releasing all defendants pending trial—especially after a finding of probable cause to believe they had committed the charged offense, made in a preliminary hearing or by a grand jury—would allow criminals to flee to avoid conviction and possibly expose the public to further predation. Some mechanism is needed to balance these competing interests.

The longstanding solution has been to require the defendant to post collateral—in the form of a cash deposit, or a surety bond—that would be forfeited if he failed to appear at trial. The amount of collateral required varies depending on the seriousness of the crime and the circumstances of the defendant—principally the risk of flight prior to trial. Courts set a “schedule” of bail amounts for different categories of offenses, with judges having the discretion to fine-tune the amounts as necessary in particular cases. The Eighth Amendment prohibits “excessive” bail, but otherwise leaves the practice undisturbed. Because of the economic consequences of a no-show, criminal defendants “free on bail” have a strong incentive to appear for their future court dates, and generally do so.

A bail bond industry has grown up to service this market, since many defendants lack sufficient assets to post the full bail amount on their own. Independent—and often family-owned—businesses post with the court the full amount of the bail (usually secured by property owned by the defendant or those willing to guaranty his appearance) in exchange for a non-refundable payment by the defendant—typically ten percent of the full amount. If the defendant fails to appear (thereby “skipping” bail), the bail bondsman (acting as the de facto insurer) is liable for the full amount, but has the right to pursue the fugitive to recover the loss, à la reality TV star Duane (“Dog the Bounty Hunter”) Chapman. If the defendant appears as required, the collateral is released. In either event, the defendant bears the non-refundable cost of the bond.

Although most Americans have never personally had to deal with a bail bondsman, we are all familiar with the storefront offices and signage near downtown courthouses. The bail system is the free market at work. Private entrepreneurs decide whether to “vouch” for individual defendants, risking tens of billions of dollars of capital each year in exchange for relatively-modest profits (around $2 billion annually, nationwide). Taxpayers are not required to pay for ankle monitors or other tracking devices; no government personnel are necessary to chaperone the defendant prior to trial, or to locate him if he doesn’t appear; and the time-tested formula for setting bail protects the public from serious or repeat criminals.

Our Constitution expressly recognizes the bail system. Under the rubric of “if it ain’t broke, don’t fix it,” one might assume that this venerable practice would flourish indefinitely, but the bail system has come under fierce attack in recent years, and now faces an existential threat. A peculiar alliance of reform-minded conservatives aligned with the so-called Right on Crime movement and the “usual suspects” on the Left (such as the ACLU and the Brennan Center) pushing a soft-on-crime agenda has organized with the goal of drastically limiting—or even abolishing—the bail system in America. And they are succeeding.

Progressives argue that the existing bail system burdens “communities of color” because criminal defendants are disproportionately African-American (ignoring the fact that blacks commit a disproportionate amount of crimes). Liberals also accuse the bail industry of “exploiting” low-income criminal defendants, without acknowledging the risk that bail bondsmen incur. Some conservative reformers view cash bail as a “tax on the poor” and bemoan the existence of pretrial detention for those unable to post bail. Reformers on the Right point out that incarcerating defendants prior to conviction is both expensive for taxpayers and unfair to the accused. A small number of criminal defendants, unable to afford the bail amount, are undeniably detained prior to trial, but this is an unavoidable feature of the bail system. Allowing all indigent defendants to go free, simply due to their economic status, would reward their improvidence and create a moral hazard. Moreover, the increased incidence of no-shows, and repeat offenses by criminals released prior to trial impose countervailing costs that must be considered.

In trend-setting California, Governor Jerry Brown recently signed a law, SB 10, that will eliminate cash bail in the state in October 2019. The law, called the California Money Bail Act, will replace the existing bail system with a government-run risk assessment allowing many defendants to go free pending trial without posting collateral. The law, if allowed to take effect, would put more than 3,000 licensed bail agents in California out of business. The bail industry in California has vowed to collect signatures to challenge the law on the ballot via referendum.

The California law has been criticized for sacrificing public safety (by removing the financial incentive for criminal defendants to show up for trial) while simultaneously authorizing pre-trial detention for defendants deemed to be too risky for cashless release due to their prior criminal records, the gravity of the alleged offense, and other factors. “Predictions” of future behavior based on sketchy social science tools are notoriously unreliable. Abandoning a centuries-old system in favor of a speculative scheme based on untested methodologies for predicting future behavior—to be applied by government personnel incapable of performing even basic tasks competently—seems reckless in the extreme.

Undaunted by California’s folly, reformers in Texas—including Democratic gubernatorial nominee Lupe Valdez—urge similar measures in the Lone Star State. Texas Chief Justice Nathan Hecht has been particularly vocal expressing alarm about the growing number and cost of pre-trial detainees being held in local jails, going so far as to propose that most offenders charged with “non-violent” crimes simply be released on their personal recognizance (i.e., without bail). While Governor Greg Abbott has proposed reforms that would make bail more stringent, the conservative Texas Public Policy Foundation advocates “a presumption of pretrial release without conditions or cash bond.”

Elsewhere, some courts have held that the cash bail system is unconstitutional on a variety of grounds. In Houston, a federal judge ruled that Harris County’s cash bail system was unconstitutional because it effectively criminalized indigency for many defendants charged with misdemeanors. Eliminating cash bail in Harris County caused the rate of no-shows (defendants failing to appear for trial) to increase sharply—40 percent of all cases according to the data. Travis County (which includes the liberal bastion of Austin), which eliminated cash bail for “minor” offenses such as shoplifting and drug possession, has experienced a similar rate of non-appearances.

The misguided debate over “mass incarceration,” and the Left’s unwarranted preoccupation with racial disparities in criminal arrests, have apparently led to an irrational prejudice against pretrial detention and in favor of abolishing the bail system. In New York City, some prosecutors have announced that their offices “will no longer seek bail for most non-felony cases, allowing defendants to be released on their own recognizance.” There is growing political pressure to eliminate the bail system altogether in the Big Apple. The curious alliance between liberal and center-right reformers even advocates the elimination of cash bail on the federal level. Bail reform—including the elimination of the bail system—has become a fashionable policy position for would-be wonks.

Like many intellectual fads, this one has superficial appeal that should be resisted. Eliminating the bail system is a radical proposal with potentially catastrophic consequences. If bail amounts are too high for certain minor offenses, reduce them. If some defendants languish in jail awaiting trial, speed things up. If prosecutors are filing an excessive number of charges against defendants to drive up the bail amount, encourage judges to exercise discretion to set a lower bail (or streamline the number of duplicative criminal laws). Abolishing the bail system altogether is throwing out the baby with the bath water.

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