05 October 2018

Bail's broken -- here's how we fix it


Bail has been on my mind of late, prompted by news California has decided to "reform" its criminal justice system by eliminating its cash bail system. Reform is in quotes because I think that it's going to have unintended consequences, none of which are good. Cf. this piece in Politico for the backstory. Long story short: in the absence of bail authorities would likely choose to incarcerate folks that would have otherwise been released. This could have a disastrous effect on those incarcerated and their families (e.g., lost jobs, inability to attend school, etc.) and would be a miscarriage of justice for the innocent.

The bail system as it stands today is a good idea that is poorly implemented. It's a good idea in that it gets the accused back to their life while they await trial, it provides incentive for them to show up at the trial, and it provides an insurance mechanism to make sure they do if they don't come willingly. It's poorly implemented in that it requires many people to pay a bail bondsman to post a bail bond, even if they are innocent. The eighth amendment to the Constitution reads:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
If a person can't afford the fraction of the bail set to pay a bondsman, it's possible that the bail was excessive in the first place, but that will almost certainly never be the view of any court.

Over at TAC, Lars Trautman proposes "private freedom funds" as a solution. The idea here is that jails contract with the with a bonding organization and profit comes from a share of the savings accrued by not locking people up. While accurately recognizing problems with the current system and potential savings with reform, the proposed solution sounds like a recipe for all kinds of abuse and corruption.

Here's a solution that keeps the system largely intact that preserves a presumption of innocence, aligns incentives for better criminal justice, and is not punitive for the innocent: for people who cannot afford to put up the bail themselves, have the arresting organization or other aspect of the government put up the money for the bond. However, to guard against gaming the system where the government is on the hook for some fixed expense, bail bondsmen would compete for posting the bond at a reverse auction where the winner makes the lowest bid. If the defendant is found guilty, he is assessed a fine equal to amount posted for the bond. If the defendant is innocent, the arresting organization has to eat that cost.

While this is an expense that government doesn't currently have today, it's conceivable and even likely that it would cost cities, counties, and states as a whole less money. Why? The cost of the bond they have to pay out would likely be less than the cost of pretrial detention for the people who otherwise couldn't make bail. Assuming that they're mostly making people who are guilty make bail, the cost will eventually be borne by the accused -- they're just fronting the money. However, it provides incentives for law enforcement to be prudential in arrest decisions by assigning a monetary cost to getting things wrong. Moreover, it provides a measure of accountability that could easily be understood by the public. Naturally, there are all sorts of way set up a system that doesn't involve direct involvement of the arresting organization in the payment of the bonds, but whatever aspect of the government that does the paying will have an accounting.

From a bail bondsman's perspective, not much changes, except now they have to compete with each other at (reverse) auction rather than competing for customers. While this may squeeze the percentage they can expect from a typical bond, they should realize a savings from not having to advertise and see increased business due to those people who otherwise would not have made bail. Bail bondsmen may or may not like the scheme, but for them it's better than wholesale elimination of their profession.

For the guilty, not much changes either. They are still out the amount they would have been, though this will have been deferred until after sentencing. There is, of course, a big change for those who are guilty but wouldn't have otherwise made bail -- they see the imposition of a financial liability they wouldn't have been given had they waited for trial in jail. In this and any case, however, provisions to pay this and any other set of fees and penalties over time can and should be made. In some cases, the governments may need to provide a fund to pay for the hopelessly indigent. Regardless, the bail bondsmen's fees are almost assuredly less than what pretrial detention costs would have been, so the system should be a net saving for government.

For the innocent, much changes for the better. People who otherwise wouldn't have made bail don't stew in pretrial detention and the people who would have gone to bail bondsmen have saved hundreds or even thousands of dollars in their encounter with the criminal justice system. And it better protects the rights of citizens recognized by the eighth amendment.

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