The Arnold Foundation has
released some fascinating research using big data-sets to help further pretrial
justice. If you want to read about the research, go to:
I’m going to talk about only one
of the research papers because the commercial bail insurance industry has
already misinterpreted it for their own gain.
The Arnold researchers, using
some really sophisticated statistical analyses, demonstrated that lower risk (as
determined by the current Kentucky pretrial risk instrument) defendants
detained for more than 24 hours were more likely to fail to show up for court
and to commit new crimes both short and long term. This is an important finding
that leads us to try to persuade judges to do everything in their power to
release a lower risk defendant once that defendant is deemed safe enough to be
managed within the community. Since money tends to detain and to prevent
release of bailable defendants, doing things like setting a surety bond will
actually increase the risk to public safety and court appearance whenever that
type of bond delays or prevents release. And, of course, those types of bonds
both delay and prevent release.
By the way, I recently
reported on a study by Dr. Michael Jones showing that there was no difference
in public safety or court appearance rates when judges used unsecured (having
to pay money only if the defendant fails to appear) versus secured (having to
pay money up-front in order to get out of jail) bonds. Thus, these two studies
together should guide judges naturally toward using unsecured bonds whenever
those judges think that money is an appropriate condition of release.
Personally, I don’t think money is ever appropriate, but for those judges
having a hard time with that idea, using an unsecured bond at least gets the
defendant out of jail quickly – thus avoiding the deleterious effects of
short-term detention – and at no cost to public safety or court appearance
rates.
I think the bail insurance
company lobbyists recognize this important coupling because now they are trying
to pick apart the Arnold study. Basically, the bail insurance companies make a
lot of money when judges set surety bonds and are content to wait around while
defendants take a week or more to come up with the money they need to get out
of jail. That is, essentially, one of the biggest problems with a secured bond
system administered through commercial sureties: it leads to people taking
longer to get out of jail, and some people never get out at all for lack of
money. Now it looks like keeping people in jail for even those short periods of
time is messing up them and society as a whole. Really, we didn’t need a
sophisticated study to tell us that.
The purpose behind limiting
someone’s pretrial freedom is court appearance and public safety – not just
court appearance as the bail insurance companies say. Moreover, bail never
means any kind of “guarantee,” which is what the bail insurance companies appear
to be saying as well. The United States Supreme Court has been clear in saying
that all we can expect from pretrial release is “reasonable assurance” of any particular
outcome, such as public safety or court appearance. There are no guarantees in
bail – risk is inherent and, in fact, necessary to our very democracy. Saying
that a surety bond is a guarantee of court appearance not only misapprehends the
foundations of bail, it is incredibly misleading. In fact, a surety bond doesn’t
even give us reasonable assurance.
