Commentary

Why Scrapping the Bail System Is a Bad Idea

Ken Blackwell
By Ken Blackwell | January 29, 2018 | 8:39 AM EST

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The justice system faces a number of tough challenges and one of them is: how to ensure that defendants appear in court, while allowing them to continue with their lives in the meantime. The answer is the bail bond system. It works by creating an incentive for private agents to capture defendants who try to avoid trial.

Most Americans will never be arrested. For those who are, unconditional release on one’s own recognizance sometimes is appropriate. But not for those accused of committing the worst crimes, when remand is necessary.

The majority of cases fall somewhere in between. When substantial evidence points to guilt, and especially when the possibility of severe punishment encourages flight, some incentive to appear for the trial is necessary. That requires taking into account defendants’ varying wealth and opportunities. The bail bond system does just that.

The worse the crime, the greater the amount of the bond. Judges also typically have discretion to adjust the bond to reflect a person’s wealth: a rich person will pay more, perhaps much more. People can put up their own money or property, which is forfeited if they don’t show up for their trial.

For those of more modest means who cannot cover the cost, there is the bail bondsman. The latter put up bail, for which they typically collect a fee of ten percent of the total. The incentive for the defendant to appear is the knowledge that your bondsman—there are around 15,000 nationwide—will track you down if you jump bail. The bigger the bond, which they lose if they don’t bring you in, the greater their incentive to find you.

Thus, the release process has a built-in “enforcement” mechanism. In essence, people are paying to ensure their return and appearance in court. Studies have consistently found that a bail bond means defendants are much more likely to show up and less likely to remain at large if they run.

Obviously, the system isn’t perfect, but what part of the criminal justice process is? Nevertheless, the ACLU and other left-wing activists are attempting to get rid of bail entirely – and without offering a workable alternative. Standard practice for them.

Obviously, the government could lock up every defendant. That, however, would be manifestly unjust and grossly inefficient. Or the police could let most people go without providing any incentive for them to show up in court, obviously a bad idea. Release could be accompanied by intensive pretrial supervision—including regular visits from law enforcement—and extensive social services. But this would cost much with little certain result and take police personnel away from their main job – protecting the public.

The latest idea from the geniuses on the left is to use mathematical algorithms to predict who is likely to skip bail. Unfortunately, when the numbers prove wrong, as is inevitable, it is law enforcement which must bring in the defendants, since there would no longer be any bail bondsmen to lend a hand.

 

In New Jersey, which replaced bail with “numbers,” those locked up complain because under the old (bail) system they could have gotten out. At the same time, law enforcement points out that people accused of committing serious crimes, including sex and gun offenses, as well as domestic violence and attacks on police officers, have received unconditional release. Complained Elie Honig, director of the Division of Criminal Justice: “We were seeing cases of firearms defendants, plainly dangerous, not being detained, and we saw people offending, being released and re-offending, sometimes within days, sometimes three or four times.”

Further, private bail bondsmen, paid for by defendants rather than the public, no longer reinforce police to ensure that those charged with crimes appear in court. Every time a person fails to appear, costs rise for everyone else. Especially if the defendant commits more crimes along the way.

ACLU activists are busy filing lawsuits attacking bail as unconstitutional. However, bonds are not a modern idea. They were used in Great Britain and adopted by the American colonies to protect communities, by ensuring defendants’ appearance at trial, and respect liberty, by enabling those presumed to be innocent to remain free absent conviction. For this reason, the Eighth Amendment explicitly bans excessive bail.

Nevertheless, critics claim the system discriminates against the poor. Of course, most everything in life is easier for those with money. Just ask Nancy Pelosi.

But bail responds to this reality in two ways: First, bonds typically are adjusted to reflect individual circumstances. Second, bondsmen post bail for a fraction of the total required, enabling even those of limited means to win release.

No doubt, the current system could probably be improved. Courts should consider all means to ensure a defendant’s appearance in court, including without bond. And bail should reflect a defendant’s unique individual circumstances.

However, the system of cash bail helps achieve two important ends: ensuring the guilty go to trial and the innocent spend as little time incarcerated as possible, which makes bail the best alternative we have.

Ken Blackwell is on the Policy Board of the American Civil Rights Union and the Board of Directors of the Law Enforcement Legal Defense Fund.

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