Monday, October 28, 2013

Bail and Money

Not much time to blog lately, but that’s only because it’s an exciting time for pretrial justice. Jurisdictions around America are seeing the benefits of improving various parts of the pretrial phase based on legal, historical, and empirical research.  And one of the best empirical studies ever has to be this one from Mike Jones over at the Pretrial Justice Institute. Essentially, this study says that secured money doesn’t matter for keeping people safe or for court appearance. I’ve been saying that for a long time, but now Mike has gone and proved it.

Secured money does matter, however, if you want to keep people in jail. No big surprise there – defendants who have secured financial conditions on their bail bonds (either cash or surety) stay in longer and some don’t get out at all. It’s fascinating, too, because the study also shows that a whole bunch of those folks who stay in the entire time end up getting released just as soon as they plead guilty. Too risky to release pretrial, okay once we know they’re guilty. It’s a strange world.  

America ushered in the commercial bail bond system and defendant self-pay laws at the end of the nineteenth century primarily because we had a problem with bailable defendants being unable to find sureties willing to do it for free. Unfortunately, the new commercial system was based primarily on secured bonds, and so we only exacerbated the unnecessary pretrial detention issue.

Whenever commercial bail bondsmen and their big insurance company lobbyists say that we should keep them around because they are good going out and finding folks who have skipped court, these days I just say, “Who cares?” If you take 100 defendants and you whittle them down to that smaller percentage who are actually released on a surety bond and who then skip court, you’re looking at about one or two people. So even if you believe that the bondsmen go out and get those two people (I don’t believe it and I have research to prove it), it’s still no excuse to tolerate a system that essentially keeps about 30 of those 100 defendants locked up for lack of money to pay the secured financial condition.  

For 80 or 90 years we have amassed a great deal of research showing fundamental flaws with the commercial surety system. Now, we’re seeing that the very premise behind the system and any system based on secured bonds – that paying some portion of the money up-front motivates defendants to come to court and stay out of trouble – doesn’t fly.