A campaign to get rid of the bail bond industry is currently in full swing across the country, with support from many liberals and libertarians. I’ve got an op-ed in the weekend Wall Street Journal’s “Cross Country” feature warning that Maryland’s experience over the past year should be a cautionary lesson:
Last fall the state’s attorney general, Brian Frosh, issued guidance that suddenly declared past bail methods unlawful, prodding the court system into an unplanned experiment. Judges may not set financial requirements if there is a reason to believe the defendant cannot pay, and unless they hold a suspect without bail, they must impose the “least onerous” conditions.
Now the results are coming in, and they can’t be what Mr. Frosh had in mind. An early report in March by Kelsi Loos in the Frederick News-Post found that since October the share of Maryland defendants held without bail had increased from 10% to 14%. The Washington Post later reported that from September 2016 to May the figure had jumped from 7% to 15%.
Meanwhile, fewer released defendants are showing up for trial. The Post, confirming anecdotal reports, writes that the “failure to appear” rate in January was 14.5%, up five points from October. Failing to show up for court sets up a defendant for more-severe consequences down the road, which can include being held without bail.
While bail reform is supposed to reduce the number of inmates held in jail, the number has instead increased in some places, though the results appear inconsistent.
If bail is taken away, judges need other tools to do the same job. Decades ago, when Congress steered the federal criminal-justice system away from bail bonds, lawmakers provided practical replacements, including systematic help in assessing a defendant’s risk of flight or re-offense, options for pretrial supervision, and methods of home and electronic detention. Several states have done the same. New Jersey now uses a mathematical algorithm to assess a person’s risk of fleeing or committing another crime. But the Maryland legislature, deeply split over Mr. Frosh’s destabilizing changes, has failed to set up such alternatives.
Maryland’s example doesn’t refute the idea of bail reform. But it does suggest state leaders should work to build consensus for comprehensive changes, instead of charging ahead with moralizing experiments.
On the current campaign to end bail bonds, see American Bar Association, Sens. Kamala Harris and Rand Paul and newspapers praising, Marc Levin (conservative), ACLU (villainizing insurers), Gary Raney.
Other perspectives: Scott Greenfield (“pre-trial incarceration was a huge factor in obtaining guilty pleas from innocent defendants,” but algorithms, used as replacement in places like New Jersey, have problems too), Joshua Page (some families value bond company’s service), Dan Mitchell. On the uncertain stance of constitutional law, see Pugh v. Rainwater (Fifth Circuit 1977) and more (LaFave et al.), Walker v. City of Calhoun, 2016 (Cato amicus: bail must be individualized) and more (James McGehee).
2 Comments
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Proposal: when a defendant turns out to be “actually innocent” rather than just “reasonable doubt,” the community should reimburse him for the 10% bail bond fee.
Unresolved question: who should order the reimbursement– the jury or judge who acquitted him? Or should there be an outside check against jury nullification?
Whoever makes the decision should be given the full record of the case, including all the evidence that was excluded at trial.