BAIL REFORM
It is common for people not to know what to expect regarding bail until they or a loved one is arrested. As a result, they often ask the same questions about bail, the bonding process, how to get in touch with a bail bondsman, and the associated costs. MCOBS is proud to partner with the American Bail Coalition to provide bail information resources to assist in answering the most commonly-asked bail questions.
FACTS VS MYTHS OF BAIL REFORM
Proponents of bail reform often argue with the same talking points to bolster their claim that monetary bail is unfair…but do they get it right? Are people really “stuck in jail” solely because they cannot afford a $200 bond? Is the commercial bail industry really an unregulated business?
Let’s review the myths…and then the FACTS.
The Myths
Click on each one to reveal the truth
EFFECTIVENESS
& COST
Two important benefits of surety bail are its effectiveness and the fact that it operates at no cost to the communities it serves. In fact, the bail industry is responsible for guaranteeing over $16 billion in liability along with the management and supervision of over 2,000,000 defendants per year.
There have been a multitude of academic, government and private studies performed on the topic of pretrial release. Each and every one of these has shown similar results. When it comes to guaranteeing appearance at court, surety bail outperforms every other form of release.
Another compelling argument in favor of surety bail involves situations in which a defendant fails to appear in court. In such cases, because their release was financially guaranteed through a bonding company, the courts and communities are compensated in full for the bond amount. Additionally, bail agents pay premium taxes to the state/county for each bond they write.
One of the many arguments used by proponents of bail reform, however, is that alternative release mechanisms provide cost savings.
Recent bail reform efforts to eliminate surety bail, however, often don't mention the hidden costs that appear once reforms are implemented. Due to additional procedures and steps necessary for law enforcement under these types of reforms, officers are routinely kept off the streets and tied to their desk for hours processing each defendant. County budgets are impacted with additional mandatory court hours, additional judges, a robust pretrial services division, monitoring equipment purchases and supervision costs, and the list goes on. Paying for all of this presents a great challenge.
For example, when New Jersey essentially ended cash bail in 2017, the new pretrial release program quickly ran into financial difficulties. Just a year into the reform, Judge Glenn Grant, who ran the state’s court system, stated that the judiciary was spending more on the program than it was collecting in fees (which was how the program was supposed to be funded). He said the program’s continued success “requires a stable and dedicated funding stream at an appropriate level” through the state’s general fund, which means taxpayer dollars.
There really is no jail bed savings calculation that can be attributed to eliminating cash bail.
Proponents have also long claimed that by eliminating cash bail and implementing a robust system of pretrial services agencies, local and state jurisdictions can save millions of dollars in jail costs. They calculate this figure by taking the total cost of a jail, dividing it by the number of days in a year, and then dividing it by the number inmates in a day. Far from scientific, this simple calculation is supposed to represent the daily cost per jail bed. Every defendant released for free is then multiplied by the cost per jail bed and then presented as savings.
The issue with these types of calculations is that most jail costs are fixed, not variable. One person being released does not result in any discernible savings because jail costs are typically not based on occupancy. Correctional officers must still be paid whether the jail is full or not. Utilities for the facility must still be paid. Bulk food, clothing, and hygiene products must still be purchased. The only way to truly save money in a jail is by closing down an entire pod, wing, or the jail itself which rarely, if ever, happens in the US.
Another factor that voids this type of cost analysis is that jail population numbers are not constant. In fact, they are constantly fluid in nature. The jail bed that has been freed up by a person being released through a pretrial services agency may be filled again by another defendant that same day, therefore nullifying any presumed "jail bed savings" that has been calculated.
The real world cost of bail reform.
As calls for bail reform have grown louder in recent years, many states and major cities have conducted appraisals to determine the potential costs to they would incur in eliminating the current cash bail system. Here are a few of the results. It is clear that bail reform will only happen at great expense to taxpayers.
PRETRIAL RISK ASSESSMENTS
In their attempts to reform the cash bail system, jurisdictions across the country are increasingly turning to automated, supposedly completely objective, pretrial risk assessment tools. The theory behind risk assessments is that they can predict whether a defendant will show up for court or will commit another crime if released. By 2017, 25% of Americans live in a jurisdiction which utilizes pretrial risk assessment tools.
The primary argument in favor of these risk assessments is that they help provide defendants and the community with faster, unbiased, and more accurate decisions on pretrial release. While this seems like a great concept, the reality is that the results have not been as promised. In fact, in a recent report, random people guessing whether a defendant would show up for court or commit a new crime were just as accurate as the "scientific" algorithm. Also, the use of risk assessment tools has been shown to perpetuate the very biases and prejudices within the criminal justice system that they were theoretically designed to eradicate.
THE FLAWED LOGIC OF PRETRIAL RISK ASSESSMENT TOOLS
Administrators of the software determine which risk scores are deemed high risk, medium risk, or low risk. The cut-off points determine whether people are released before their trials, but are rarely explained and are often based on subjective decisions made by these administrators, not on data-driven analysis. How risk assessment tools work and why they produce the scores they do is usually kept secret. These systems are developed and operated by proprietary businesses, and their operative algorithms are kept secret even from the defendants they impact. This means any flaws in the algorithms remain hidden and are impossible to correct.
Fallacy #1
Risk assessment tools perpetuate a vicious cycle of discriminatory outcomes. The data these systems rely on reflect years of over-policing in communities of color, and will continue to perpetuate the same biases already present in our legal system. At every stage of the criminal legal system, stark racial inequities exist. Black and Brown people are more likely to get stopped, be arrested, be held pretrial, get convicted, receive lengthier sentences, and be denied parole.1 If the decisions are solely sourced from this data, the outcomes will only perpetuate racial bias and inequities.
Fallacy #2
The factors that go into determining flight risk are also tainted by structural racism that has historically caused people of color to have less access to housing, health care, and jobs. If the tools are only as good as the data they rely on, then the tools will produce outcomes that reflect structural racism and racial bias. The tools have also been proven to produce greater false positives among Black people than white people—meaning they are less accurate in computing risk scores for black defendants.
Fallacy #3
While there has been very limited research conducted on the effects of pretrial risk assessment tools in practice since their inception, what data does exist does not paint a positive picture. The adoption of risk assessment tools typically did not lead to lower failure to appear rates - in fact, in some jurisdictions these numbers rose. The same trend also often occurred with pretrial rearrest rates.
With the explosion of advances in AI over the last few year, it's entirely possible that a pretrial risk assessment tool that is actually accurate and objective might be developed at some point. However, we have not yet reached that point, and bail reform proponents who point to the current models as the path forward towards progress are standing on shaky ground.
SUPERVISION & MONITORING
If the financial incentives and safety net provided by surety bail is to be replaced with state-based supervision release programs, there are some important considerations to keep in mind.
The first is the cost of such systems. For example, it costs Washington, D.C. $60 million every year to run their system. Additionally, if a defendant is financially incapable of paying for their supervision and monitoring services while on pretrial release, it's obvious that the taxpayer is eventually going to wind up footing that bill down the road.
Another huge consideration is that most of these government pretrial services programs are not law enforcement based and therefore lack the ability to arrest or threaten to arrest the defendant if they fail to appear. While warrants on these defendants will be issued and files will be turned over to law enforcement, it is unlikely that the defendant will be apprehended unless they are stopped for another offense, such as a traffic stop. In comparison, a surety bail agent has a strong financial motive to make certain that a defendant appears at all assigned court dates and typically has the power and resources to make that happen - all at no cost whatsoever to the taxpayer and community.
JAIL OVERCROWDING
Jail overcrowding has been a hot topic in the criminal justice community for many years. Many have placed the blame for this squarely at the feet of the bail industry, claiming that people are being forced to remain in jail because they cannot afford bail or even a surety bond.
This claim ignores the fact that surety bail accounts for a large percentage of releases that either would not occur without some it or for which costly government programs would have to monitor and supervise the defendants. The claim also ignores the fact that a majority of the defendants being held in jail are not eligible for bail and are being held due to other legal barriers that have nothing to do with financial conditions.
Surety bail is not the cause of jail overcrowding but rather a smart and effective key to solving it. In order to best manage jail populations, jurisdictions need a proven release mechanism that will truly guarantee appearance in most cases. They need a solution that is not just about assessing risk, but, more importantly, about managing risk out in the community. Surety bail is the most effective and time proven method for solving this problem.
INDUSTRY
REGULATION
A well-regulated bail system is essential to making sure that surety bail can continue to be a critical partner in the criminal justice system. Because bail agents are empowered with the authority to arrest, it is essential that state regulating agencies put into place systems of rules and mandates which protect all parties involved within surety bond transactions. Organizations such as MCOBS and the American Bail Coalition work within states and nationally to assist policy-makers in the creation of common-sense regulation of the industry.
Our organizations also know that the resources used by the criminal justice system within local and state governments are much larger than most would think. From arrest, to release, to trial and beyond, the impact of the resources used can multiply drastically, especially in states where bail reform measures have eradicated cash bail. We work together to advocate for laws and regulations which could minimize the impact that the loss of these resources has on communities throughout the nation.