Editor’s note: This is the eighth in a collaborative series with the R Street Institute exploring conservative approaches to criminal justice reform.
The right to be free from excessive bail is enshrined in the 8th Amendment of the Constitution, yet this fundamental protection has failed to prevent the pretrial detention of hundreds of thousands of people every year who are unable to afford bail.
Others can secure temporary freedom but only at exorbitant cost to themselves, family, or friends through the services of a bail bondsman. The government is not spared from the costs of bail either, spending around $13.6 billion every year on pretrial detention. As it harms almost every party involved, it is easy to conclude that our system of bail is broken.
These failings have spurred reform across the United States, with a handful of jurisdictions even going so far as to reduce reliance on, or outright eliminate the use of, money bail. This progression has been cheered on by many, but it’s also been met with great resistance—no surprise here—from the bail bond industry.
Whether viewed as an alternative to abolition or merely a stepping stone to it, additional intermediate bail reform strategies are sorely needed. One such innovative approach that has captured the imagination of reformers is the establishment of community bail funds, which use communal resources to identify and bail out indigent defendants who are deemed likely to return to court.
Short of the Bill Gateses and Warren Buffetts of the world uniting to donate their wealth to these community bail funds and end money bail as we know it, such charity is unlikely to have the force necessary to truly alter the money bail landscape. The private sector, on the other hand, may well have that kind of power: private freedom funds that would free indigent defendants, save the government money, and potentially incentivize the release of individuals on their own recognizance.
One of the first official acts of the court in a given criminal case is determining which conditions of release—if any—are necessary to ensure that the defendant will appear back in court when the time comes. The most common and well known condition is posting bail, whether it be direct cash or collateral. So long as he abides by the terms of his release, this amount will be returned at the conclusion of the case. Other conditions may include requirements such as pretrial monitoring or drug testing. In rare cases, bail may be denied entirely.
Generally, the court focuses primarily on two concerns in making this decision: the risk of flight and the potential danger the suspect may pose on the outside. In some jurisdictions, bail is set at predetermined amounts based on the severity of the crime rather than the defendant’s character, presumably to ensure equal—if not quite individual—justice.
With law enforcement making over 10 million arrests every year in the United States, a growing number of Americans regularly face the prospect of a money bail. For example, the percentage of felony defendants required to post bail rose from 37 percent in 1990 to 61 percent in 2009. Numbers this large have ensured that commercial bail bonds remain a multi-billion dollar business that impacts hundreds of thousands of Americans every year.
Furthermore, while large scale data on bail remains elusive, the most recent Bureau of Justice Statistics report estimates that 38 percent of defendants in the nation’s largest counties and cities were detained prior to trial, and that nine in 10 of these defendants had a money bail set but were unable to post it.
The negative ramifications of even a short pretrial detention extend well beyond the loss of freedom for the individual. A jail stay can be personally traumatic; it can put a person’s job and housing in jeopardy and throw family and childcare obligations into chaos.
And let’s not forget that all of these circumstances are being visited upon an individual who is still considered legally innocent until proven guilty.
The weight of this enormous money bail system falls, much like the rest of the criminal justice system, disproportionately on the poor. For example, in 2015 the average yearly income of a non-incarcerated male in the United States was $39,600, while the average male who failed to make bail earned only $15,598 prior to his incarceration. In short, bail is most often assessed against those with lower incomes, making it incredibly difficult for many defendants to post bail.
One Bureau of Justice Statistics report determined that in our nation’s largest 75 cities and counties the median felony bail was $10,000 in 2009, which would amount to about seven-and-a-half months of income for the average male defendant. These numbers can vary tremendously. For example, in Baltimore a study by the Abell Foundation found that in 2013 the average bail for defendants classified as “low risk” was $51,000. At the same time, the average annual income for individuals from the five Baltimore neighborhoods funneling the majority of jailed individuals was only about half that amount: $26,164.
Unsurprisingly, a lot of folks need bail bondsmen, who often charge a nonrefundable fee amounting to 10 to 15 percent of the bail amount. These contracts can also involve payment plans and onerous financial and other conditions that trap individuals and their family or friends in a seemingly never-ending cycle of debt and detention.
Sadly, these costs end up being borne regardless of whether an individual is guilty or simply the victim of overzealous prosecution. For example, between 2011 and 2015, bail bondsmen collected $75 million in Maryland alone from individuals whose cases resolved without any finding of wrongdoing.
In the meantime, these policies end up draining local governments. One survey found that, depending on local costs and inmate populations, the daily cost of jailing an individual can range from $47.66 to $571.27. And we’re not talking one night stays. The average length of a pretrial detention has also been increasing since the 1980s, hitting 23 days in 2013.
We see a somewhat curious situation arising. In many instances, the cost of holding a defendant is actually greater than the bail. That means it would sometimes be cheaper for the government to simply pay the bail itself. There is no better example than New York City, which represents the high end of the incarceration cost range, yet has median bail amounts of $1,000 for misdemeanors and $5,000 for felonies. It therefore takes only two days of pretrial detention for jail costs to surpass the median misdemeanor bail, and only 10 for the median felony.
Reform, however clearly needed, is almost always difficult to achieve. For example, while it may be tempting to suggest that judges simply stop setting outrageous bails, that would require thousands of judges to agree, legislatures to acquiesce, and for the rest of us to accept an unprecedented level of judicial activism. Instead, reformers must focus on slow, painstaking reforms that target legislatures and executives.
Some reformers have concluded that the practice of money bail should be eliminated altogether. Generally advocates of this approach, like the states of Alaska and New Jersey, have recommended the greater use of risk-based analyses and non-monetary pretrial conditions. In other places, advocates have pursued stopgap measures such as community bail funds. In recent years, organizations in Minnesota, Brooklyn, and a handful of other locations have sprung up to create collective pots of money to bail indigent defendants out of jail, usually in collaboration with a public defender’s office. City governments such as New York City have found this model attractive and are now looking at ways to get involved.
But the number of these funds across the U.S. remains small, despite some of the success rates reaching the high 90th percentile. A reliance on donations and other charitable funding sources appears to place, if not a ceiling, then at least a slowing anchor on growth.
The American embrace of the separation of powers generally means that the county executives running and paying for our jails have no authority over the judges that decide bails or the legislators who create bail rules in the first place. As such, the bail system currently suffers from a jailer’s dilemma: it is in a jailer’s best interests to have a defendant bailed, thereby saving him the cost of jailing him, and it is in that defendant’s interests to do the same—yet neither party can set or afford the bail.
What does this look like in practice? Let’s assume a judge in Johnson County, Kansas (just outside of Kansas City) sets a bail for a particular defendant at the median felony amount of $10,000. Meanwhile, the Johnson County Sheriff’s Office, which serves as the local jailing authority, can expect jail costs of $191.95 per day, for a total of $4,414.85 if the defendant is held for the average pretrial detention length of 23 days. Under the present system, if the defendant cannot post bail, he will lose his freedom for the better part of a month and the sheriff’s office will spend thousands of dollars to detain him.
Now consider what happens if someone does post bail. After the bail is posted, so long as the defendant remains law abiding and appears for court, at the end of the case the sheriff will have saved $4,414.85 in taxpayer funds otherwise spent on detaining that defendant. Seeing those numbers, it’s no longer quite so crazy to think that the sheriff might want the defendant’s freedom almost as much as he does.
Yet, thus far, the burden of procuring a third party to post bail has fallen solely on defendants by way of bail bondsmen. As evidenced by the extensive criticism of the industry and the hundreds of thousands of defendants who remain detained, it is clearly an imperfect resolution at best. So what if the other party in the jailer’s dilemma—the jailing authority—got involved?
A jailing authority like the Johnson County sheriff could utilize the cost savings that it accrues when an individual is bailed to incentivize private investment in the bail system. Essentially, in exchange for fronting and risking the capital necessary to bail out a defendant, a private organization would get a share of the money saved by the jailing authority. Such a solution would stand to benefit all parties involved: freedom for the defendant, lower costs for the jailing authority, and a positive return on investment for the private organization.
This is where private freedom funds come in. Whether operating as nonprofit community bail funds or as for-profit enterprises, these funds could post the bail. If the defendant succeeds while out on bail, the fund gets its bail back plus the incentive payment. If the defendant fails and returns to jail before the case is over, then the fund receives no incentive payment and likely loses the bail. In either case, the worst the jailing authority can do is find itself back where it started: paying to detain the defendant until trial.
The private freedom fund, on the other hand, has a calculation to make: what are the odds of the defendant succeeding while out on bail? In our Johnson County example, if the sheriff offers half his anticipated savings—$2,207.42—then a basic anticipated return on investment calculation shows an expected profit for the fund if there’s at least an 82 percent chance of defendant success.
While these only represent rough, back-of-the-envelope calculations, they highlight how private freedom funds stand to result in many more individuals being freed and millions in government cost savings and private sector revenues. The District of Columbia essentially eliminated money bail decades ago, yet typically still has around 87 to 88 percent of defendants in any given year succeed on pretrial release. Community bail funds, as we have already seen, due to their ability to actually pick and choose defendants, often see success rates in the 90th percentiles. While bail amounts and jail costs will fluctuate across jurisdictions, all of these numbers suggest that private freedom funds could prove valuable in many cases, possibly even the majority.
A natural question to ask is how might private freedom funds affect bail rates, especially since they would be instigated and supported by officials other than the judges who set bails? One of the major critiques of the bail bond industry is that its existence has placed an upward pressure on bail amounts. This occurs because a judge who is determining a bail based on its financial impact on a defendant may be tempted to raise a bail amount if he or she believes a defendant will only ultimately have to pay a small fraction of it.
The prospect that a defendant will no longer be beholden for any of the bail amount creates an interesting related issue. Judges will no longer have an incentive to artificially inflate a nominal bail in order to raise the de facto bail amount for the defendant. After all, when a private freedom fund gets involved, no matter the bail set by the judge, the amount paid by the defendant remains zero.
Not only might private freedom funds remove inflationary bail pressures, they could eliminate smaller bails altogether. If, for example, a judge believes that a $500 or $1,000 bail will almost always be posted by a private freedom fund—a fair assumption given that jail costs will often exceed that in a matter of days—then there is no point in setting that bail in the first place. The defendant walks free in either instance and all the judge would be doing by setting a bail is
sticking the local sheriff with an unnecessary bill.
Of course, some people are uneasy about the idea of removing a defendant’s financial incentive to return to court. Indeed, this is why many are skeptical about the idea of abolishing money bail altogether. However, this once again displays the genius of private freedom funds: they don’t eliminate the financial incentive, they simply transfer it from the defendant to the private freedom fund.
A private freedom fund that has hundreds of thousands, and possibly millions, of dollars on the line will want to increase the odds that its bailed defendants remain law abiding. This will be accomplished by prudent investment—particularly recidivistic or dangerous defendants represent poor investments and will not be bailed—and potentially through the provision of resources to defendants that are bailed. Private freedom funds will be incentivized to explore low-cost interventions such as sending defendants reminders about court dates or directing defendants to substance abuse, mental health, or other resources. Many of these approaches are already employed by the more successful community bail funds.
Furthermore, we already implicitly accept this transfer of bail incentives from the personal to the professional through our reliance on bail bondsmen. Not all defendants bailed by a bondsman need to put up collateral beyond a nonrefundable fee, meaning that once they are out on bond, money is not a factor for them in determining whether to return to court. What’s more, various laws often protect bail bondsmen from having to forfeit bails to the court following a defendant’s non-appearance, meaning that bail bondsmen may not always have as strong an incentive to return a defendant to court as one might think. Even though defendants may find their obligations to the bail bondsman unshakeable, the same cannot be said of the bail bondsman’s duty to the court.
Indeed, bail bondsmen generally discharge their liability for the full bail amount upon the re-arrest of a defendant, but get to keep the premium paid to them by that defendant. This means that the re-arrest of a defendant can actually be profitable for them—they retain the fee without any further risk to the bail. Conversely, private freedom funds would stop receiving any payment upon the re-arrest of a defendant, since his subsequent jailing would eliminate any further cost savings. As a result, private freedom funds would actually have greater incentives to prevent individuals from reoffending, thereby doing more to protect public safety.
The viability of private freedom funds rests, first and foremost, on securing and appropriating funding for the endeavor. This is no small task given how loath most politicians are to fund any project, let alone one whose financial benefit stems from costs never incurred. Yet in recent years we have seen a series of leaders at the state and local level willing to invest in reform. From the conservative governor of Georgia, Nathan Deal, to the progressive district attorney of Philadelphia, Larry Krasner, criminal justice reform is increasingly a winning issue. As governments begin to see meaningful returns on their investment in reform, funding will only become easier to secure.
Unlike many criminal justice reforms, private freedom funds have the additional benefit that they could be created at either the state or local level. Rather than requiring consensus for implementation, they only need a single enterprising actor—be it a sheriff, governor, or even the legislature—to turn the idea into reality. Conversely, it would likely take the concerted effort of the entire law-making apparatus to prevent or undo their creation. For once, political conditions actually favor action.
This is further assisted by the low upfront investment and need to pay only if and when the private freedom funds succeed. It is the fund, not the government, that has to front and risk the bail money, and if the defendant finds himself back in jail, the government does not owe the fund any longer. All the government has to do is offer the incentive payment and then allow the private sector or nonprofits to step up to the challenge.
And each jurisdiction could customize its own private freedom fund program as it sees fit, lending it additional merit as a locally-led reform. For example, in deciding how to determine the amount of cost savings to apply to a given case, a jurisdiction could tie it to individual cases in an effort to target those most prone to lengthy detentions. If a particular case lasted six months, then the savings would be benchmarked against a six-month jail stay. Alternatively, a jurisdiction could create a standardized fee schedule based on offense type, which might lack a direct connection to each case, but would streamline the system and potentially reduce barriers to its adoption.
Each jurisdiction could also determine exactly what percentage of its actual jail cost savings would be offered as an incentive to private investors. Those seeking greater budgetary relief could offer less; those wishing to maximize the number of defendants released prior to trial could offer more. Conceivably, in larger jurisdictions, a small market could even form with various private entities bidding to post bails, their competition lowering the amount of cost savings they might be willing to accept from the government.
While a particularly wealthy and committed jurisdiction could theoretically run its own bail fund program, this would likely represent a true outlier. First, as a general matter, few local governments have the millions of dollars in liquid funds needed to address bail on the necessary scale or the political will to do so. Tellingly, even New York City’s entrance into community bail funds involved solely private funds. These financial and political shortcomings make the leverage of private freedom funds all the more attractive, with jurisdictions able to use relatively limited funds to secure an outsized impact.
Additionally, its incentive-based design is not without precedent in public affairs. In the last few years, jurisdictions have begun experimenting with social impact bonds and the “pay for success” model more generally in non-bail contexts such as prisoner reentry. These operate in situations in which private investors believe that they can provide a public good in a more efficient and cost-effective manner than the status quo. If investors create a program and, within a specified time frame, it is able to meet certain benchmarks, then the government will pay a return to that organization. If the investors fail to deliver, then the government does not have to pay them a dime.
Private freedom funds also have the potential to turn the bail reform debate on its head by co-opting one of reform’s most strident and ardent opponents: the bail bond industry. The potential impact of a pretrial system without money bail on the industry’s bottom line would be devastating, thus its resistance to reform. Ameliorating these concerns could go a long way toward softening its political opposition.
By maintaining a role for private enterprise in our bail system, private freedom funds do not represent the same kind of threat to the livelihoods of bail bondsmen and others with a more vested personal stake in the status quo. While it would require a reorientation of their business model, their wealth of expertise in assessing a defendant’s flight risk would give many bail bondsmen the inside track on the new bail-related industry. As operators of private freedom funds, former bail bondsmen would do many of the same risk assessments they do now; the payments would simply come from the jailing authorities rather than defendants. As such, it should not appear as threatening as getting rid of bail altogether.
Similarly, a government-backed market for private freedom funds may win over some opponents of money bail due to its ability to sustain and expand the use of community bail funds, which could operate as private freedom funds. Currently, these community bail funds struggle to break even due to various fees and overhead costs, not to mention the loss of the occasional bail, which requires constant fundraising. The private freedom fund model gives them an opportunity to start earning revenue from existing operations by collecting incentive payments for each successful bail case. Further, this newfound independence would not be built on the backs of the indigent defendants that these organizations are dedicated to helping.
There is also reason to believe that such a move could find support on both sides of the political aisle. With a taxpayer friendly, pro-private sector orientation, the appeal for conservative audiences is readily apparent. At the same time, its ability to reduce the incarceration of indigent defendants at no cost to those defendants while simultaneously applying pressure in favor of fewer money bails set in the first place, should endear it to the more pragmatic members of the Left. Its potential to service constituencies on both sides should attract the interest of leaders who are hoping to avoid overt political branding altogether. In short, it is a compromise solution that almost anyone could claim as a win and few should feel as a loss.
There is growing awareness that money bail is being overused and that bail reform is not a question of “if” but “how.” Unfortunately, while there may be common ground over the current inappropriate use of money bail, there remains a significant divide over whether it ought to be used at all. Fundamental disagreements about the nature of financial incentives on release, not to mention the vested interests of some parties, have frustrated consensus on this question and stalled reform in too many jurisdictions. While these debates can and should continue, there are simply too many Americans suffering under the status quo not to explore alternatives in the interim.
Lars Trautman is a senior fellow of criminal justice and civil liberties policy at the R Street Institute. Previously, he served as counsel for the Homeland Security Committee in the U.S. House of Representatives, and as an assistant district attorney in Essex County, Massachusetts.