January 3, 2017

Private: The High Cost of Bail

Arpit Gupta, Ethan Frenchman

by Ethan Frenchman, Appellate Attorney, Maryland Office of the Public Defender and Arpit Gupta, Professor of Finance, NYU Stern School of Business

Across the United States, judges routinely require criminal defendants, who have not been convicted of any crime and are presumed to be innocent, to buy their freedom in the form of money bail. As any defense attorney can attest, this system jails the poor and allows the rich to free.

And because many criminal defendants are poor, the key factor in the incarceration of people awaiting trial is poverty, not their risk to society or their risk of failing to appear in court. As a result, on any given day more than 450,000 people are in jail merely awaiting trial. The human and economic costs of this unnecessary detention are staggering.

In a study of pretrial detention in Maryland, we found that more than 17,000 people were jailed because they were too poor to pay a bail amount of less than $5,000. Those unable to pay the full amount of money bail set by the court must resort to bail bondsmen, who typically demand 10 percent of the total bail amount as a non-refundable fee for securing the defendant’s release. This means that these people could not buy their freedom for $500. Because we looked at only a fraction of Maryland criminal cases, this statistic dramatically underestimates the total.

Money bail does more harm than just jailing poor, presumptively innocent people for no reason. For those who can afford to buy their freedom from a bail bondsman, the price is steep. Defendants and their families were charged more than $256 million in non-refundable fees by bail bondsmen in Maryland from 2011 to 2015. Those defendants who are acquitted or otherwise not convicted of any charged will never see a nickel back of this money. More than $75 million was charged to defendants who were never convicted of any crime.

The money bail system also perpetuates racial disparities in the justice system. Over five years, black defendants in Maryland were charged premiums of at least $181 million, more than twice the $75 million charged to defendants of all other races combined. The current system allows the commercial bail industry to get rich off of the meager savings of poor people and black defendants and their families in particular.

Perhaps the unnecessary jailing and impoverishment of poor people could be justified if there were some evidence that money bail actually achieves its stated purpose of incentivizing defendants to return to court and not commit new crimes. But after looking at millions of cases in three different jurisdictions, we have found no evidence that this is true.

In a paper we published this past summer in the Journal of Legal Studies, we found no evidence that the money bail system in Philadelphia and Pittsburgh caused defendants to return to court. Even worse, the money bail system actually causes new crime and convictions. We estimate that the assignment of money bail causes a 12 percent rise in the likelihood of conviction and a 6-9 percent rise in recidivism.

And defendants in Baltimore City who bought their freedom from a bail bondsman were no more likely to return to court than defendants released on "unsecured bond," for which defendants pay nothing unless they fail to appear.

Our findings lead to the inescapable conclusion that states must follow the lead of every other nation on earth, except the Philippines, and end their reliance on a pretrial system that jails people for no reason, costs the poor hundreds of millions of dollars and causes crime.

Thankfully, there are easy alternatives. As shown by our study of Baltimore, and a previous study in Colorado, unsecured bonds are as effective as the current pay-or-stay system in guaranteeing that defendants return to court. And because unsecured bond allows for the release of defendants even if they cannot immediately afford an up-front payment, the broader use of unsecured bonds will reduce the needless incarceration of the poor and needless payments to the commercial bail bond industry.

Jurisdictions can also adopt automated court notifications. As any defense attorney knows, a great many defendants miss court simply because they forgot about their court date or they went to the wrong location. Cities around the country are beginning to offer automated alerts to remind defendants of their court dates by phone or text message. These solutions are readily available at a fraction of the cost of unnecessary detention.

Pretrial detention is truly the front-door of mass incarceration. The adoption of cheap, common-sense alternatives can empty the jails of needlessly caged people without causing any increase in crime or failure to appear in court.