Freedom and Money – Bail in America

Spurgeon Kennedy, Director, Office of Strategic Development

The Justice Policy Institute (JPI) published three reports that highlight key differences between Washington, D.C.’s bail system and bail setting nationwide. Released in September 2012 as part of JPI’s “Bail Month” initiative, Bail Fail, For Better or for Profit and Bailing on Baltimore, analyze the use of money bail and its debilitating effects on public safety, defendant rights, and justice system resources.

Bail Fail: Why the U.S. Should End the Practice of Money for Bail shows how the average bail amount on pretrial detainees has more than doubled over the past 20 years, despite evidence that higher bail amounts do not promote public safety nor court appearance. The report also details how rising bail amounts are a primary driver of jail population growth, which now average over 62% pretrial detainees.

For Better or For Profit: How the Bail Bonding Industry Stands in the Way of Fair and Effective Pre-Trial Justice explores the growth of the commercial bail bonding industry, its increasing influence in the administration of justice, and the corruption that historically has plagued the industry. Its authors estimate that there are approximately 15,000 bail bond agents in the United States, writing about $14 billion worth of bonds annually. Backed by multibillion dollar insurance companies, the for-profit bail bonding industry maintains its hold in the pretrial system through political influence. The report includes recommendations to abolish for-profit bail, promote more use of pretrial services programs, and require greater transparency within the bail bonding industry.

Using money in exchange for freedom, in the form of money bail for release pretrial, is unfair and ineffectual, according to Baltimore residents interviewed for JPI’s final report, Bailing on Baltimore: Voices from the Front Lines of the Justice System. The report explains how money bail discriminates against low-income communities, with serious consequences for them and their families, and how for-profit bail bonding undermines the judicial system. Interviews gathered the perspectives of residents who have been through the city’s pretrial justice system, practitioners from pretrial service agencies and both prosecuting and defense attorneys. According to JPI Executive Director Tracy Velázquez, “by conveying how lives are affected by the bail system in Baltimore City – and around the nation – we hope the reports will be a catalyst for policy reforms and system improvements.”

“The Baltimore bail system relies almost exclusively on financial terms of release, or money bail, which means that someone’s financial resources are a major factor in determining whether they have to sit in jail pending trial,” said Bailing on Baltimore author Jean Chung, who produced the report as an Emerson Hunger Fellow with JPI. “It’s a system that disproportionately locks up low-income people and perpetuates the vicious cycles of poverty and incarceration in those communities. It’s a failure. It’s unfair.”

Proponents of bond-for-profit argue that financial incentives are indispensable to assure that defendants appear in court as required. If they’re right, then the outsourcing of release and detention authority to private bail interests done in most courts across the country is justified—and the resulting inequities found by JPI and others would be the unfortunate but necessary costs of doing business. However, the facts show that this simply isn’t true. Every day in jurisdictions across the country, thousands of defendants appear for scheduled court dates and remain arrest free while in the community. Many of these defendants are released simply on their promise to appear in court or on some type of pretrial supervision, but without the financial incentive many argue incorrectly is crucial.

These daily unspectacular success stories show that money is not the key to ensuring court appearance and safeguarding the community. If you follow where the facts lead, you will understand that the premise that supports financial bail is wrong and the system it supports antiquated and indefensible. Money simply is not the great motivator of pretrial behavior and is inappropriate to the level and types of risk most pretrial defendants present. There clearly are better and fairer ways to ensure court appearance and safeguard the public. 

In Washington, DC, nearly 88% of defendants are released non-financially. In the rare cases where judges set financial bond (4%), it is nearly always cash bond. In our system, there’s no need for a commercial bondsman with the “extra financial incentive” to ensure a defendant’s appearance. Over the past five years, 88% of released defendants on average have made all scheduled court appearances and 88% on average remained arrest free while in the community pending trial. Ninety-nine percent (99%) of released defendants were not rearrested on a violent crime while in the community. Eighty-five percent (85%) of released defendants remained released while their cases were pending without a revocation of release or supervision. Conversely, around 12 to 15% of defendants on average are detained by statute throughout case adjudication. These defendants either met specific statutory requirements for detention following a full due process hearing or were found by a court to be too risky for release.

It didn’t happen overnight, but locally, we have created legal and cultural expectations that, as stated by former Chief Justice William Rehnquist, liberty pretrial is the norm and that detention prior to trial the carefully limited exception. This success is due in large part to local and federal bail statutes that outline acceptable detention eligibility and restrict money bail usage, a risk assessment that categorizes defendant risk for failure, supervisions options that match these risk levels, and tracking of relevant outcome and performance measures. The result is a bail system that should be a model for other jurisdictions and proof that money has no place in the discussion about pretrial liberty.

You can find the JPI reports at the organization’s website.