By Zina Makar, Legal Fellow at the Open Society Institute-Baltimore City
The number of people that remain detained pending trial because they cannot post bail is staggering. Courts deny defendants bail because they may pose a danger to society.1 But, when a defendant is given a bail amount, he is given an opportunity to his liberty prior to trial because he is not a threat to society. Whatever the amount may be, the logical presumption is that the defendant should be able to afford bail; otherwise being detained based on inability to pay would be an effective denial of bail. So, what is the point of bail if it results in incarceration?
When a court enters a bail amount for a defendant, the court is making an individualized determination that would, theoretically, allow for the pretrial release of the individual but require that he bear an economic risk so that he is incentivized to make all court appearances pertaining to the arrest. For instance, if bail were set at $150,000 at ten percent, then someone on behalf of the defendant could take $15,000 cash to the detention facility for the defendant’s release. That ten percent would be held as collateral and only returned on the condition that the defendant appear for all court dates. This scheme serves several functions within the criminal justice system. It (i) creates an economic incentive to avoid failures to appear,2 (ii) promotes the presumption of innocence at the pretrial stage by giving the defendant an opportunity to his liberty prior to sentencing,3 and (iii) promotes community wellness that prolonged pretrial detention would handicap.4
In Baltimore City, the bail bondsmen act as the middlemen to help indigent families secure the release of their loved ones. However, this third party involvement removes the economic risk of failing to appear from the defendant. Instead, it turns the concept of bail into a one-time payment, i.e. economic loss.
The corporate bail industry was created as a public service—to help those who do not have the means to make bail secure a loan from a bail bondsman as a lender of last resort. The defendant pays approximately ten percent, often in installments with or without interest, of the applicable bail amount to the bail bondsman who in turn delivers a promissory note to the court.
Consider a variation from the above scenario with bail set at $150,000, but at 100%. The same family that could afford $15,000 cash to the court would not likely have $150,000 cash readily available. Enter the bail bondsman. The bail bondsman will charge $15,000 (payable in installments if necessary), to tender a promissory note for the defendant’s release. The family will never get back any of the money paid to the bail bondsman.
If bail is set at 100% what purpose does it serve? In both scenarios the defendant is released and has to pay ten percent. However, the first scenario is incentive-based because it involves the defendant facing the risk of loss. The second scenario demonstrates a pure economic loss and therefore no conditional incentive for the defendant to appear.
Unfortunately, the second scenario is much more common in Baltimore City.5 The purpose of entering bail is to ensure that the amount of money the defendant pays, if he is released, is sufficient to ensure his appearance at trial.6 Simply put, if the amount of bail is set high enough that it forces the defendant to be invested in reappearing for court in order to get his money back, then the purpose of bail is met. Getting your money back in this system is key—that’s the incentive. But, as the current state of bail stands in Baltimore City, there is no economic incentive. Where there is no incentive there is no motivation for the defendant to return to court and one failure to appear will deem him a flight risk in the future.
A defendant poses a flight risk if, by a preponderance of the evidence, there is an indication that he may intentionally evade the criminal justice system. That is not the same thing as failing to appear for a court date. It is true that many with a prior record have several failures to appear, also referred to as FTAs. This could easily be credited to the failed incentive system. These FTAs are not necessarily willful and could have resulted for a number of reasons—e.g. inability to make a court appearance because the defendant was being detained at the time, he was hospitalized, or as simple as the defendant did not believe a certain court date requires his physical appearance, such as an arraignment hearing.7 The defendants in Baltimore City, often born and raised, living in the same area their whole lives, are rarely ever a willful flight risk. FTAs in Baltimore do not necessarily equate with flightiness. Nonetheless, these prior FTAs will appear on record when bail is determined and that gets factored into an increased bail amount.
Technically, the bail bondsmen provide a service. But the need for the bail bondsman’s service is artificial. Over the years more and more families turned to bail bondsmen and the court system adapted around the bail industry. Courts realized that most families were only paying ten percent to bail bondsmen, creating a shift towards an artificially inflated bail system to overcompensate for the actual decrease in payment by the family and keep the economic incentive intact.8 However, the purpose of bail then got lost in translation because the economic incentive became widely removed. The courts confuse the goal of meeting bail and the result. They believe whether the defendant pays cash to the court or pays it to the bail bondsman he still regains his liberty prior to trial.
This is a fundamental misapplication of bail that divests the criminal justice system of its interest in prohibiting punishment prior to conviction. The goal is to find an equilibrium where the defendant is released but invested enough that he returns to court. In theory, the goal is not even to detain the defendant. Nothing about the purpose of bail is intended to detain the defendant, unless he is denied bail.
What would be the best system of reform to decrease FTAs, and perhaps even to decrease recidivism? Abolish the bail-bondsman industry. What about all the indigent defendants who cannot afford the bail—does this suggest they all stay in jail? Certainly not. The Courts in Baltimore City, well aware of the bail-bondsman culture, have created these artificially inflated bail amounts to cater to the industry. Deflate the bail amounts, make them reasonable, actually reasonable, so that indigent defendants can afford the amount, in cash. By doing this, the court takes out the need for the bail bondsman, pushing him out, and reverting back to the incentive system where the defendant has an opportunity to get his money back.
Bail bondsmen do provide some utility, at least when the defendant truly does not have the resources to pay the court directly. The bail bondsmen should only exist for those who cannot produce the “ten percent” in cash to the court. This industry cannot be the only gate-keeper to liberty prior to a determination of guilt—promoting the system as a whole to be the primary form of payment is fundamentally unfair because it competes adversely with the regulatory and social utility that bail was intended to promote.
The amount the defendant pays will always be ten percent (or less). Even if discounted, liberty prior to trial should not have a price tag. Defense attorneys often close with the phrase, “Your Honor, the defense asks for a reasonable bail,” when asked for their recommendation by the bail judge. With essentially forced reliance on the corporate bail scheme, reasonable does not mean what it used to. Instead, attorneys should advocate that their client’s receive a meaningful bail—one that serves the purpose of bail such that the defendant does not suffer a life-altering economic loss to regain his freedom or be erroneously deprived of his liberty because he cannot afford such an excessively high amount.9