We Cannot Avoid the Ugly Tradeoffs of Bail Reform

By Alex Tabarrok

Many people think that “innocent until proven guilty” implies that everyone should be let loose on their own recognizance before trial. A moment’s thought reveals that this is idiotic. The white supremacist Dylann Roof killed nine people on June 17, 2015 at the Emanuel African Methodist Episcopal Church. His image was captured on security cameras and he was arrested the next day. Roof’s trial, however, didn’t start until more than a year later, December 7, 2016, and he wasn’t convicted of anything until December 15, 2016. Should Roof have been released before trial because he was “innocent until proven guilty”? Of course not. I stand second to none in demanding high standards before the state can deprive a person of their liberty but high standards do not demand binary divisions. Tradeoffs are everywhere and when the evidence against the accused is strong and the danger to the public is high, it’s not unreasonable to deprive the legally innocent of some liberty prior to trial. The tradeoffs are ugly, as they always are when trading off two sacred values, but the tradeoffs cannot be avoided.

Consider now the issue of bail reform. In the days when the default was that every accused person was held before trial, the idea of money bail was seen as a liberal, progressive measure that allowed more people to get out of jail. Today the natural default is seen as release until trial and bail is therefore perceived as a conservative, regressive measure that unjustly and unfairly keep poor people in jail. As a result, reformers are trying to reduce or eliminate money bail but they are doing so without thought for the ugly tradeoffs.

The bail reformers frame the issue in a way that I think is misleading. Anytime someone can’t pay for bail they call that “unaffordable bail”. Well that’s literally true but it also gives an incorrect impression of destitute people being denied their freedom because they don’t have a buck. To be sure that does happen but here’s an open secret of the judicial process. Judges sometimes set bail expecting and indeed hoping that it won’t be affordable. Everyone knows this but the bail reformers don’t like to acknowledge it because it brings up the ugly tradeoffs. Consider the following, from Chicago, where the bail reform movement is very active:

…there are about 2,700 people being held in jail because they can’t afford bail but [the Chicago court official noted] 87 percent had a current violent or weapons-related charge, a risk assessment recommending “maximum conditions” if released, an assessment flagging them for violence, and/or an active probation or parole case.

In other words, the judges set a high bail amount for a reason. Under orders from the Chief Judge, however, Chicago has been trying to reduce bail:

Chicago and its surrounding county was supposed to be a beacon of bail reform. After Cook County Chief Judge Timothy C. Evans imposed new rules and made sweeping changes to the bench, advocates hoped that virtually no one would be jailed because they didn’t have the money to make bail.

…At first, it seemed to have the intended effect: In the first month after the order, the number of people who had to post money bonds dropped by more than half, while the number of people who were released on their own recognizance—allowed to leave upon promising to return for trial—doubled. Bail amounts also decreased, as did the number of people in jail.

So what happened when bail reform met reality? Under the new system, judges that set a lot of “unaffordable” bail looked bad but most of the people who can’t pay their bail can’t pay not because they are especially poor but because the judge thought that they were a danger to the public. Judges continue to believe that many defendants are dangerous but now rather than setting bail they simply deny bail altogether. In fact, under the new system the rate of denying bail has risen fourfold. In addition, judges soon discovered that the cost of releasing defendants in terms of crime, failure to appear, and perhaps bad publicity was too high so they started to ignore the demands of the Chief Judge.

…But a year later, [the Coalition to End Money Bond] found that not only are judges still setting bail amounts that defendants can’t afford—meaning that more than 2,700 people are in Cook County Jail because they don’t have enough money [recall these are the 2,700 with serious records, AT] —but that things are getting worse. The initial gains “have steadily evaporated and bond court outcomes are now approaching pre-Order levels,” the report states. The authors note that if judges were sticking to the order, there would be no bail amounts set at levels that defendants can’t afford; instead, it says, nearly 30 percent of bail amounts were unaffordable. Between November 2017 and June 2018, judges set unaffordable bail amounts for more than 1,350 people.

Bail reformers are blind to the tradeoffs that must be made between public safety and the rights of defendants. Since the reformers are blind to these tradeoffs they can’t see that money bail actually helps to alleviate these tradeoffs. Reformers think that money bail simply keeps the poor in jail but in fact money bail is a half-way house between release on own recognizance and hold until trial. Money bail lets judges release more people. Bail reformers assume that if they eliminate money bail then judges will release everyone. In fact, as the Dylann Roof case illustrates, that is never going to happen. And when the public realizes that judges are releasing lots of defendants who subsequently commit more crimes there will be a backlash, as is already evident in Chicago. By eliminating the half-way house of money bail, bail reformers force judges to either release or hold until trial. Some people who under the current system are released on bail will, under the new system, be held until trial. Indeed, the unintended consequence of bail reform may be that more people are held until trial with no possibility of release.

Sometimes poor people are unfairly held until trial. Eliminating money bail, however, is a crude and dangerous approach to this problem. Instead we should deal with it directly by flagging and reevaluating jailed, non-violent offenders with low bail amounts, use alternative release measures such as ankle bracelets and most importantly, we should look to the constitution. The founders understood the ugly tradeoffs which is why the constitution guarantees the right to a “speedy trial.”  Unfortunately, that right today is widely ignored. My route to reform would begin by putting teeth back into the constitutional right to a speedy trial.

Addendum: Illinois doesn’t allow commercial bail so I haven’t mentioned bounty hunters but in other parts of the country their role in the criminal justice system is important, even if widely misunderstood and disparaged. My paper (with Eric Helland) shows that bounty hunters are more effective than the police at recapturing escaped defendants. More specifically, compared to similar defendants released using other methods, defendants released on commercial bail are much more likely to show up at trial and are much more likely to be recaptured should they flee. See also my adventures as a bounty hunter.