Bail Reform Is Overdue, But Finally Here
The concept of bail occupies an honored if uneasy place in our iconography of justice. Night after night on TV police procedurals, judges set high bails, and indigent defendants desperately tell their lawyers, “I can’t possibly afford that!”
In the real world, things are changing. Last week, Maryland became the latest state to decide that no defendant should be jailed simply because of an inability to afford bail. The reform is long overdue, and the only people who should truly be upset are those who make their living as bail bondsmen. (More on them in a moment.)
When a judge sets bail, the accused must put up the money or stay behind bars. The purpose of bail to make sure that the defendant shows up for trial. If he skips town, the money is forfeit. The process has a surface logic and a long history. But passage of time has only made the flaws more evident.
In the first place, consider the sheer numbers. Something on the order of 7 million people are jailed each year simply because of an inability to post bail. Estimates of the cost of keeping them incarcerated run as high as $9 billion. A bail requirement obviously places the poor at a great disadvantage: They are less likely than the middle class or the wealthy to find the funds to remain free until trial. And of course racial disparities in bail proceedings are by now so well documented that they should need no citation. 1
Small surprise that the bail reform movement, which has been around for decades, has finally begun to make real progress in as many as a dozen states. In November, New Mexico voters overwhelmingly approved a constitutional amendment that seeks to limit bail to cases where the prosecutor “provides clear and convincing evidence that the defendant will not come back to court, and is a danger to the community.” 2
The Maryland approach is not atypical. According to a proposal adopted by the state’s supreme court, as of July 1, “A judicial officer may not impose a financial condition in form or amount that results in the pretrial detention of the defendant solely because the defendant is financially incapable of meeting that condition.” Put otherwise, the judge has to take into account the resources of the accused. The poorer the defendant, the lower the bail.
Some opponents of the bail reform movement worry that those who were once held in jail pending trial will now be out on the street committing crimes. One can understand the fear, but the solution cannot be to keep millions of unconvicted defendants behind bars. In the American system, the function of bail is not crime prevention. The system exists only to make sure that defendants show up for trial.
Bail reform proposals, including the one just adopted in Maryland, always leave room for judges to decree pretrial detention for those who are considered a danger to others. And high bail can still be required for those thought to be high flight risks. The difference is that defendants will no longer remain in jail just because they are poor.
Besides, even if one believes that pretrial detention reduces crime (and there is empirical work suggesting it might, very slightly), studies suggest that overall, judges and magistrates are not very good at predicting which defendants are likely to reoffend. In the District of Columbia, where suspects in nonviolent crimes are routinely released without bail, nearly 9 out of 10 return for trial, and only about 1 percent commit a violent crime while awaiting trial.
An August 2016 working paper from the National Bureau of Economic Research that examined 420,000 defendants confirmed the implication of other work that those who remain in jail because they cannot make bail are more likely to be convicted, mainly because they plead guilty. The study also examined the slight reduction in crime as a result of detaining the accused until trial and concluded that the practice “has a short-run mechanical incapacitation effect on defendants who are detained, but minimal effects on crime once we include arrests following case disposition.”
All of which is to say that there is no reason to worry about a crime wave once we stop keeping people in jail because they are too poor to make bail. At this point, about the only major constituency that continues to fight against reform is the bail bonding industry, whose profits depend on the existence of people who cannot make bail. But the fading power of the bail bondsmen is not something many will lament.
Fairly or not, the industry has long had a reputation for tawdriness. Allegations of corruption abound. Opponents of the commercial bonding industry typically point out that although bonders earn billions each year, the return to public safety is small. True, the industry provides a valuable service -- enabling people who would otherwise sit in jail to post bail. And there is empirical evidence that the existence of the bonding industry alleviates a significant part of the effect of racial discrimination in bail.
But these advantages only exist so long as the bail system exists. As more jurisdictions adopt various forms of bail reform, the work of the bonders will become less valuable. This is why the industry tends to fight most reforms, in particular those aimed at eliminating bail entirely.
In the closing weeks of Barack Obama’s administration, the Department of Justice filed a brief in a Georgia case arguing that to detain a suspect for no other reason than his inability to pay is unconstitutional. One can only hope that the new Justice Department keeps the brief in place. But with or without the aid of the federal government, jailing defendants because they are poor seems to be on the way out. And for that we should all be grateful.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
If you are nevertheless a skeptic, see for example here and here. There is no serious debate over whether there is racial disparity in the granting of bail and in fixing the amount. The jury may still be out on the issue of whether race additionally aggravates the tendency of judges to sentence more harshly defendants who remain in jail pending trial.
In other words, nonwhite defendants are less likely to be granted bail and, if they are granted bail, more likely to have their bail fixed at levels that they cannot afford. This puts them into the class of people judges treat harshly. That class is thus disproportionately nonwhite. Within that class, however, race may play only a small role in sentencing. It is in the disproportionate assignment to that disfavored class that the racially disparate harm arises.
I say “seeks to” because critics of the bail system contend that the measure does not go far enough, and would still allow a substantial number of defendants to be incarcerated for inability to post bail. The wording is vague enough to leave unclear the precise effect.
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Stephen L. Carter at firstname.lastname@example.org
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Stacey Shick at email@example.com