Bailing Out On Common Sense

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.

Reader Discussion

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on October 15, 2018 at 11:55:17 am

The amount of bail, traditionally, has not depended only on the risk of flight and the seriousness of the crime, but also on the financial circumstances of the defendant. The ancient common law traditions of what it meant for bail to be "excessive" required that it be no more than a defendant could pay, this is because of the fundamental right to liberty prior to conviction at trial. I should know, I filed a brief in the Harris County case (and won against Paul D. Clement who was representing the American Bail Coalition and the Professional Bondsmen of Texas as amici), here was my brief: https://object.cato.org/sites/cato.org/files/pubs/pdf/o27donnell-5th-cir.pdf

Blackstone said the system of bail was setup so "so that persons might be admitted to bail before conviction almost in every case." The words "excessive bail ought not be required" were included in the English 1689 Bill of Rights to stop the Stuart King Charles II from requiring bail higher than people could afford.

As far back as the Northwest Ordinance in 1787 required that “[a]ll persons shall be bailable, unless for capital offenses, where the proof shall be evident or the presumption great." A key example from early American history is United States v. Lawrence, 4 Cranch C. C. 518 (1835), in which Richard Lawrence attempted to assassinate President Andrew Jackson, failing only because two properly loaded pistols both misfired. And the judge at the time said: "the constitution forbade him to require excessive bail; and that to require larger bail than the prisoner could give would be to require excessive bail, and to deny bail in a case clearly bailable by law.”). The Judge initially suggested a $1000 bail for the attempted assassination of the President of the Untied States, but the government noted that he had friends that could help and so it was raised to $1500. As Joseph Chitty wrote in 1832, “The rule is, where the offense is prima facie great, to require good bail; moderation, nevertheless, is to be observed, and such bail only is to be required as the party is able to procure; for otherwise the allowance of bail would be a mere colour for imprisoning the party on the charge." William Smithers wrote, in 1886, "To require larger bail than the prisoner can give is to require excessive bail, and to deny bail in a case clearly bailable by law.” George Arthur Malcolm in 1920 wrote “It is substantially a denial of bail, and a violation of constitutional guaranties against excessive bail, to require a larger sum than, from the circumstances, the prisoner can be expected to give.”

Harris County was violating this by having effectively a fixed bail schedule for people accused of crimes. Those people who could not afford the fixed bail schedule were set to jail without having been found guilty of the crime they were accused. The Appeals Court ruled that an individualized determination is required.

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Image of Devin Watkins
Devin Watkins
on October 15, 2018 at 14:37:17 pm

"The Appeals Court ruled that an individualized determination is required."

Sounds sensible BUT:

How many defendants appear before an an Arraignment Court Judge each day in NYC, Chicago, Detroit, LA, etc.
How individualized will this be? or CAN it be? Are we to conduct a forensic financial hearing as well for each accused?

What does *afford* mean in this circumstance?
Does it mean a) that the accused can make payment of the bond?
Does it mean that were he or she to forfeit the bond, it would not be said that he / she could *ill afford* to do so"
Does it mean that flight from bond will not significantly and adversely affect the accused financial well being?

And why ought, say, nobody who is alleged to hold Three Little Old Ladies hostage in his basement be required to pay $50,000 bond when "excessivelyperky" who claims (near) indigency is required to pay only $5,000 when arraigned?

It could be argued that bail ought to be set at no more than "X" percent of an accused wealth? Liquid only " or real as well. At least this would provide a fig leaf of equal treatment, while not avoiding the problems of financial verification.

Then again, what bail would be appropriate for a homeless type?

I can imagine an entire new "function" of local governance being created to handle this new "equality" - the Department of Compassionate Bail Bonding comprised, no doubt, of numerous sociology - financial *experts*.
goodness gracious, it may not be long before the commissioner of said Department becomes an elected position.

And what offenses SHALL NOT be bailable?

Perhaps, Mark's suggestion to review ALL bail schedules AND eliminate the requirement of bail for minor nuisance offenses has more merit that the "individualized" equal treatment facade. It is at least "workable" without a full scale revamping of the Arraignment process.

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Image of gabe
on October 15, 2018 at 15:15:34 pm

About Harris county, Not so fast: https://www.facebook.com/1507689979455306/posts/2648019835422309/

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Image of Sylvia
on October 15, 2018 at 15:53:28 pm

Many states already provide a individualized determination of bail.

Usually a defendant that wishes to claim that they lack of the financial ability to pay a given bail amount swears about what current assests and other income they have. Here is the form for Texas (where Harris County is): http://www.txcourts.gov/media/1435953/statement-final-version.pdf

"Afford" means the amount of money that they could be reasonably expected to raise from their own funds and other friends and family members.

Some vary serious offenses are not bailable (usually capital crimes), but I believe at the federal level all crimes are bailable. There are a set of crimes in which it is possible to deny bail altogether (depending on a variety of factors) and those are persons charged with a crime of violence, an offense for which the maximum sentence is life imprisonment or death, certain drug offenses for which the maximum offense is greater than 10 years, repeat felony offenders, or if the defendant poses a serious risk of flight, obstruction of justice, or witness tampering.

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Image of Devin Watkins
Devin Watkins
on October 15, 2018 at 15:55:24 pm

Actually that one is more general and includes all court costs.

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Image of Devin Watkins
Devin Watkins
on December 30, 2018 at 05:47:44 am

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.