Baiting out the Bail System: It's Time to Rethink How We Deal with Defendants Awaiting Trial

Article excerpt


EVERY DAY in America, the personal liberty of thousands rests upon a technology originally created in the Middle Ages. No, not semi-automatic sporting rifles, those came later. I'm talking about bail.

As early as the 11th century, Anglo-Saxon courts began letting persons accused of a crime avoid pretrial detention in return for putting up some security--typically money or property--meant to guarantee their attendance when the court date finally arrives. More than 1,000 years later, the practice persists.

At a time when GPs-enabled ankle monitors can do the work of a hundred paparazzi hot on the scent of Kim Kardashian, we're paradoxically using bail more than ever. While pretrial release figures for state and local courts aren't regularly aggregated on a national level, the Bureau of Justice statistics did release a report in 2007 based on a study that analyzed data for state court felony defendants in the 75 largest U.S. counties between 1990 and 2004. In 1990 this report showed, 53 percent of these defendants had financial conditions imposed as a requirement of their pre-trial release. By 2004, that number had risen to 68 percent.

And it's not just that bail is being used more frequently than it was 20 years ago. The Justice Policy Institute (JPI), a nonprofit pushing for bail reform, notes in Bail Fail, a report it published in September 2012, that average and median bail amounts are rising too. Between 1992 and 2006, the average bail amount increased from $36,497 to $55,500 (in 2006 dollars). In 2006, the median bail amount for felony defendants in the nation's 75 largest counties was $10,000.

Historically, financially secured bail has been an important tool in our justice system, a way to give genuine heft to the notion that persons accused of crimes enjoy a presumption of innocence. Likewise, the commercial bail bond industry, which helps defendants obtain release without having to put up their full bail amounts themselves, has also played a key role in the preservation of individual liberty.

Indeed, according to the American Bail Coalition (ABC), a trade industry group, the nation's 15,000 bail bond agents "transact an estimated 3 million court appearance bonds annually" Unfortunately, a much higher number of people, closer to 12 million, get booked into the nation's city and county jails now. (City and county jails are used to hold persons awaiting trial along with others serving sentences on misdemeanor charges. Persons who've been convicted on felony charges usually complete their sentences in state or federal prisons.)

That works out to around 735,000 or so inmates at any one time. Because 60 percent of them are simply awaiting trial, this means that right now there are roughly 441,000 people in America, equivalent to the population of Atlanta, who are stuck in jail even though they haven't been convicted of a crime.

Some of these people are not eligible for pre-trial release. Others who can afford to pay their bail amounts typically get out in a few days or less. Those who can't, and who can't obtain release through other means, can be kept behind bars for weeks or even months.

To make pre-trial release more equitable, JPI wants to "eliminate money bail" altogether. Failing that, it advocates "ban[ning] for-profit bail bonding companies." In either scenario, it wants to expand the usage of government-funded pre-trial agencies that release defendants on their own recognizance, often with conditional measures, such as wearing an electronic monitor or participating in a substance abuse program.

Naturally, the commercial bail bond industry opposes such suggestions. "Whether consumers realize it or not, there is currently a war being waged in the criminal justice system: a war being waged by government funded programs on a private industry," the ABC charged in a rebuttal to the JPI's reform efforts in a report entitled The War on Public Safety. …