Scientifically Assessed “Risk-Based” Bail isn’t Perfect! (But It’s Still a lot Better than Money Bail)

My series (part 1, part 2,) of posts have sought not to focus on the flaws of the money bail system (my colleagues have done an admirable job), but to highlight an alternative – risk-based bail.  I’ve discussed tools that are better indicators of a defendant’s risk than the proverbial gut, the history of national bail reform and the 4 elements that make up risk-based bail, and an insider’s look into effective implementation of risk-based bail here in the federal Northern District of California. However, there are still those who believe a risk-based bail system is not as effective as money bail. This post assesses the arguments proposed by the status-quo crowd.

There are a wide variety of arguments by proponents of the money bail system. The sources of these arguments are similarly varied, from bail bond associations, legislators, judges, and even civilian comments on websites (First Amendment exercise at its finest). However, the two most prominent arguments seem to be the following:

  • Money bail is a great incentive for defendants to show up to court
  • A money bail system is free to society and taxpayers

When assessing the system (in practice not just theory) it is still clear, money bail is a bad deal, and one we can no longer afford.

Does Money Bail provide an incentive for defendants to show up to court?

The first argument is a common one, that a money bond guarantees the defendant will abide by the court’s rules and is a “financial investment in future appearance.” Certainly on its face this argument appears to make sense— “Deposit X amount that you can’t afford to lose, and when you behave you can get it back.” Perhaps the simplicity of this argument is what makes it so appealing. It sounds like an apartment safety deposit. However, there are two unstated assumptions for this argument to be valid. The first is that the full amount (and no less) is both required and necessary to safely release a defendant. The second is that an arrested defendant could actually afford to pay this amount (again, in its entirety.) While this system may work for defendants with substantial means, it works quite differently for the rest of us. Let’s look at how money bail plays out here in San Jose with some common crimes.

Bail is set with a consideration to protect the safety of the community (PC 1275), and the severity of this amount is supposed to give the defendant an interest in complying.  According to the F.B.I.’s 2014 Uniform Crime Report, the most common type of crime in San Jose is “property” crimes (burglary, larceny, grand theft auto, arson). The comparative bail schedule for these offenses ranges from $1,000 for stealing a library book (pdf pg 73), $10,000 for driving a car without permission (pg 53), to $100,000 for arson (pg 61). Moreover, the bail amounts for these offenses all “stack” cumulatively, so an arrest for four $10,000 offenses amounts to  $40,000 in bail. Assuming this figure for our hypothetical, let’s add average finances to the mix.

The average American has less than $6,000 in savings. The savings amount of the average San Jose resident is unknown. It is known that 20% of San Jose households (pdf pg 18) lack the net worth to subsist at poverty level for three months without income. It’s also known that 28% lack liquid assets required to subsist at the poverty level for three months without income. This is despite an $80,000 median household income (pdf pg 16).

Based on the above numbers, it’s unrealistic to assume the average individual would be able to come up with such a sum (equivalent to a year’s tuition at Stanford.) Further, this is before taking into account that incarcerated people are poorer than non-incarcerated people before they even enter custody.

Put all this together and you end up with the current money bail system, where the amount is set so high many defendants cannot afford to pay it. The apparent solution? Some can contract with a bail bondsman to pay a mere 10% (non-refundable) of their bail amount to receive their freedom. This begs the question, how does paying a non-refundable fraction of the required amount serve the purpose of the bond? In our above situation, the rule of law determined $40,000 is required to ensure our defendant can safely be released, yet she can be released after coughing up only $4,000. First, this undermines the determination that an amount 10 times higher was actually required. Second, the entire justification of money bail is that the refundable nature of the bond incentivizes compliance. But here our defendant will never get her deposit back, so the bond has not incentivized her to comply. If she will be released on $4,000 anyway, why not set bail at that amount? The defendant could post it directly to the court where it would be refundable, thus providing an incentive again.

The application of money bail has also led to a high number of pretrial detainees. As a previous post mentions, here in Santa Clara County, 90% of detainees are in custody because they cannot afford bail. This is not an anomaly, either. In New York, 50,000 defendants annually are detained due to inability to pay, and 40% jailed on the infamous Rikers Island are pretrial detainees. The situation has devolved so far that even New York’s Chief Judge has sought to institute bail reform from the bench. A fourteen year study of detention and release in the 75 largest counties nationwide revealed similar results wherein 5/6 of pretrial detainees were in custody due to inability to pay. This same study indicated a mere 5% of defendants paid their bail in cash up front.

The justification for money bail has been undercut by its application. All that has been demonstrated is that bail schedules are 10 times too high, we have institutionalized a middleman, and filled jails with people not yet convicted of their alleged crime. However, proponents of money bail will argue that bail bondsmen are more than middlemen, and they earn their 10%. They provide supervision, track down absconders, and all these services do not cost taxpayers a dime.

Do Bail Bondsmen actually save the government money?

The second argument often repeated is that the bail bond industry doesn’t cost tax payers money, compared to government-run pretrial release programs. But in the long run are there any savings? While it is true that the government does not pay bondsmen to supervise, or track down absconders, this does not make the money bail system free. There is one more number to be added to the calculation, the amount spent for detention.

One such government-run program is the Washington D.C. pretrial release program. Reviewing data from 2012, it has been quite successful, with an 89% appearance rate, a mere 2% re-arrest rate for violent/drug crimes among non-drug users (5% for drug users), and an overall 15% detention rate. However the cost is nearly $60,000,000 to supervise defendants in 19,146 cases. This comes down to more than $3,000 spent per defendant, a figure that wouldn’t be spent with bail bondsmen. However while this may seem like a large amount of money, every defendant that is released is one less defendant that is in custody, and the in custody costs are massive in comparison.

As a country, we spend nearly $14 billion annually on pretrial detainees. Since county jails are the facilities that hold pretrial detainees, and since on average over 60% of jail inmates are pretrial detainees, it is not surprising that they have accounted for 95% (pdf pg 21) of jail growth in recent years. But let’s narrow our focus to the county jail system here in Santa Clara County. It’s one of the largest, in the top twenty nationwide. Moreover, it’s one of just 100 systems with daily population over 1,000. (At the time of this writing, the population was over 3,000 inmates. Click here to see today’s). But let’s look at this cost. The current 2016 budget for our jail system is $138 million dollars, and appears to be growing (pdf pg 394). By implementing release programs instead of relying on bail bondsmen, we can save taxpayers millions of dollars.

Cost of Pretrial Detention

In 2014 (source for all data below, unless otherwise noted) the high pretrial detention rates of the money bail system lead to Santa Clara County taxpayers footing the bill of more than $120 million dollars for our jail systems. In 2014 (pdf pg 14), 32,000 defendants were processed through Santa Clara County jails. This figure does not factor inmates already in custody, or those serving their sentences. 87% were involved with felony charges, and 13% with misdemeanor charges. Moreover, the average daily inmate population is around 4,000. Given that on average 65% (pdf pg 22) of jail populations are pretrial defendants, this leads to approximately 2,500+ pretrial detainees in our jails on any given day. This pretrial population spends quite some time in custody. While misdemeanants (a mere 13% of all entrants in 2014) spend 27-32 days on average, felony defendants average 201-235 days. It is approximated by the Office of Pretrial Services that 90% of pretrial defendants cannot afford bail, numbers that are in line with national averages for felony pretrial defendants. On average, the daily cost of detention is approximately $159 per day per inmate (pdf pg 22).

Cost savings by supervising or releasing on OR instead

On the other hand, supervision is far cheaper. In Santa Clara County, it costs approximately $15 per day per defendant (pdf pg 22). While, we do not know what the case length for defendants in this time period would be, for our purposes we will assume the lengths are the same. This would equate to a $144 daily savings per defendant. Even if case length tripled for released defendants, the daily savings would be still be over $100 per day per defendant. OR has similarly proven to be a substantial savings. Over a six month period OR release saved the county more than $30 million in detention costs (pdf pg 23).

One final note on our statistical comparison. Critics may claim that cases will last longer if more people are released, or there are other hidden costs to replacing money bail with risk based bail. However, data of national federal pretrial release, which fully implements risk-based bail, shows that pretrial supervision is still 10 times cheaper than incarceration across the board. On average federal pretrial release costs $7.24 per day, compared to $73.03 for pretrial detention.

We pay fantastic sums of money to lock up someone who has not been convicted, rip them away from their life, prevent them from working to support their family, and remove one taxpayer from the pool. This is the true cost of money bail. The money bail system leads to far higher detention rates with the taxpayers left footing the bill.

Conclusion and How to Move Forward

While no system or process is perfect, it is exceedingly clear (and has been for decades), that a change is needed in the way we handle bail in this country. Despite its proponents, there are many reasons why the money bail system is flawed. Most damningly, its very application undercuts its purpose. A high refundable bail amount is set at a price point a defendant cannot afford to walk away from; however, she cannot possibly afford that sum so she needs a bail bondmen who enables her to be released for a fee that is 10 times less, but non-refundable, negating any incentive the bond was supposed to provide. In practice, the money bail system literally makes no sense.

In addition to its lack of logic, money bail unfairly penalizes the poor, who can make up 90% of pretrial detainees. The only difference between these citizens and those who are released is their respective bank account balances. That hardly sounds like due process and equal protection under the law, and only perpetuates the insidious notion that justice is for sale.

Lastly, and most important fiscally, money bail costs taxpayers a tremendous sum. 60% of jail inmates are pretrial detainees, at an average cost statewide of more than $50,000 per inmate for per average daily jail population.

It is true that risk-based bail is not a perfect solution either. It costs taxpayers money upfront. It necessarily leads to an expansion of government (for better or worse depending on your views). It is also more risky. More arrested individuals are released back into the community, with a greater possibility of new crime occurring. While this risk has literally been mitigated, new crimes can and do occur, albeit at very low rates. But perhaps risk-based bail’s biggest flaw is the immense challenge it presents of reeducating judges, lawmakers, and the public. To quote Mark Twain, “It’s not what you think you know that gets you into trouble, it’s what you think you know that just isn’t so.” Fighting more than just inertia, such change must also overcome the groups who have a vested financial interest in maintaining the status quo. This is likely why the bail bond industry has spent hundreds of thousands of dollars (pdf pg 4) lobbying in California.

Risk-based bail with (1) risk assessment tools assessing danger in ways the gut cannot, (2) appropriate supervision measures to mitigate risk, (3) acknowledging that some defendants are too dangerous to release and (4) giving the variety of court related agencies the time to perform a satisfactory detention hearing avoids the injustices of money bail. But, as the status quo crowd will say, it’s still not perfect.

However, any system that doesn’t discriminate against the poor (as much), doesn’t lock up those who can be safely released (as frequently), isn’t logically inconsistent, and doesn’t cost as much is, de facto, better than money bail. Let’s do the ethical and fiscally smart thing. Demand an end to the money bail system. If you are unsure where to start or how you can help, write your congressman and tell them you support the No Money Bail Act of 2016. Progress has already been made in the Federal Courts (which have had bail reform since the Reagan Administration), New Jersey, and now New Mexico. It’s time to bring the rest of the country up to speed.

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