When I wrote last month about Google’s and Facebook’s ill-advised decision to turn away ads for bail bond services, I hadn’t seen Alex Tabarrok’s insightful post on the same topic, calling the tech giants’ decision “deeply disturbing and wrongheaded.” Excerpt:
Bail bonds are a legal service. Indeed, they are a necessary service for the legal system to function. It’s not surprising that bail bonds are used in communities of color and low income neighborhoods because it is in those neighborhoods that people most need to raise bail. We need not debate whether that is due to greater rates of crime or greater discrimination or both. Whatever the cause, preventing advertising doesn’t reduce the need to pay bail it simply makes it harder to find a lender. Restrictions on advertising in the bail industry, as elsewhere, are also likely to reduce competition and raise prices. Both of these effects mean that more people will find themselves in jail for longer….
Ian Ayres and Joel Waldfogel also found that the bail bond system can (modestly) ameliorate judicial racial bias. Ayres and Waldfogel found that in New Haven in the 1990s black and Hispanic males were assigned bail amounts that were systematically higher than equally-risky whites. The bail bondpersons, however, offered lower prices to minorities–meaning equal net prices for people of equal risk–exactly what one would expect from a competitive industry.
My own research found that defendants released on commercial bail were much more likely to show up for trial than statistical doppelgangers released by other methods. Bounty hunters were also much more likely than the police to capture and bring to justice people who did jump bail. The bail bond system thus provides an important public service at no cost to the public.
In addition to being wrongheaded, Google’s decision is disturbing because it is so obviously a political decision….[Every] time Google acts as a lawgiver instead of an open platform it invites regulation and political control.
Meanwhile, reports from Maryland confirm that (as I’ve warned in the past) that state’s unplanned experiment with curtailing cash bail, without due attention to developing alternative institutions, has led to the retaining in jail of many defendants who otherwise would have rejoined their families [Jayne Miller/WBAL, Scott Shackford/Reason] More links on bail controversies: Scott Greenfield; Daniel Dew, Buckeye Institute last year (pro-reform in Ohio).
5 Comments
Finally some common sense on bail reform. Those trying to do away with bail are truly spreading a false and misleading narrative. People are not in jail because they are poor. They are in jail because they are accused of committing a crime. That being said, bail is the keystone in our criminal justice system that ensures justice for all parties. It ensures that the accused can be released pretrial to best prepare for their defense. It ensures that the victim will get his day in court and a chance a justice. It ensures that they public will be kept safe because there is someone supervising and responsible for the accused. And lastly, it ensures that our system gets a chance to work. When the defendant fails to appear the system fails and no justice is served.
Every legitimate third party peer reviewed study ever done on the bail industry and pretrial release has shown that when a defendant is released on a financially secured bond, they are more likely to show up and less likely to commit another crime while out than any other form of release. It is time to stop treating the criminals like victims and trampling on the rights of crime victims.
If you eliminate bail, you end up with two options. Release for FREE (paid for by the taxpayer) or detention. After you release everyone for free and they violate, they will then be detained. Thus increasing detention levels. There is a reason that the Federal system detains more than 70% of defendants. Is that what we want at the local level? I dont think so.
The 10% that a defendant typically pays to the bail bondsman is like an interest payment on a loan– non-refundable. It amounts to a heavy fine– morally problematic when a defendant is innocent. There should be a mechanism for the State (not the bail-bondsman who was performing a service) to reimburse defendants for bail costs in cases of actual innocence– though not in cases of “reasonable doubt” or jury nullification. Perhaps juries could be empowered to recommend reimbursement, but with independent review by a panel not connected with the trial. Making victims whole for the State’s errors is a most worthy expenditure of taxpayers’ money.
This doesn’t seem like it would kick in very often. If there’s no probable cause to think they did it, how was an arrest warrant issued in the first place?
Not guilty is not guilty regardless of cause. Maybe make bail refundable based on the state charging someone else? After all, if they decide that someone else is probably guilty doesn’t that confirm the innocence of the first charged? But I still say the right path is not guilty means not guilty.
Here’s a radical thought: adjust bail rates to amounts that defendants can (barely) afford, thus giving them overwhelming incentive to show up in court.
Of course, that would destroy the entire industry of bail bondsmen, bounty hunters and so forth, and thus the chance for anyone except lawyers to profit from criminal proceedings. It would also make it difficult for criminal lawyers to get money up front, so it will never happen. It would destroy the purpose of our entire legal system: to make a buck off the schmuck caught up in it.
Bob