The Unanswered Question of Bail Reform: Who Pays?

As a follow up to my last blog post, The Bail Bond Industry: A Scapegoat of Convenience, I wanted to focus this blog post on the question that no one ever seems to want to bring up in the “Bail Reform” discussion.  And that question is…Who pays? Whether it is the state of New Jersey wanting to expand its pretrial services agencies or Maryland’s recent efforts at Bail Reform, public sector pretrial release proponents never seem to be concerned about the real elephant in the room…the money and where will it come from.

The public sector pretrial community for years has touted the success of the Washington D.C. pretrial services agency.  It is the case study that they believe is the perfect pretrial model for success and the blueprint that all counties in the U.S should follow.  However, while they tout the amazing success of the program, there is one topic that they do not typically talk about…and that is the money…or as I like to say the most important question you can ask, WHO PAYS?  The DC pretrial program monitors 4400 defendants at a whopping cost of $59 million.  That is $13,409 per defendant that is spent to supervise defendants and ensure they show up for court (BTW, the commercial bail industry does the same thing at no cost to the taxpayer).  Additionally, when a defendant fails to appear, the DC pretrial office has the luxury of having the US Marshall Service at their disposal to go after fugitives.  BTW, just for the record the success rate of the DCPSA is 88%.  That means 12% of defendants never appear for court.  Now compare that to the commercial bail industry which has a 98% success rate.  It is really amazing to think that a 12% failure rate is considered a success in the public sector.  Just imagine if your airline only got to its destination 88% of the time, or your bank only got your account balance right 88% of the time…would that be acceptable.  And just for the record, the person that funds the Washington DC pretrial program…you, the US Taxpayer.

Now in order for you to fully understand the magnitude of the dollars we are talking about, let me put this in perspective.  If you were to apply the $13,409 per defendant to a typical metropolitan county in the US that doesn’t serve 4400 defendants, but rather 20,000 defendants a year that cost balloons to over $268,180,000 to provide ONE typical metropolitan county in the US a DC like pretrial services agency (FYI…there are over 3000 counties in the US).  And remember that this typical local county won’t have the resources of the US Marshal Service available to help it track down those defendants that fail to appear. They will instead have to rely on an already overburdened and under resourced local law enforcement agency.  What this does is create significant lapses in public safety.  Either police have to put aside regular duties to pursue a growing number of fugitive warrants, or they have to ignore the fugitive warrants and go about their regular law enforcement duties to protect the public.  Whatever they decide to do, public safety is impacted in a negative way.  And please don’t misunderstand my point.  It is not law enforcements fault. The fault lies with an ineffective public sector program that costs counties money they don’t have and requires resources that are already overburdened.  Additionally, these public sector programs do not have the proper incentives and levels of accountability to perform at the highest level possible as does the private sector (i.e. the commercial bail industry). Most importantly, let’s not forget that the commercial bail bond industry is not only the most effective form of pretrial release (proven time and time again by countless research studies and academic papers), but also costs the county $0.  And this is a talking point that never seems to come up in the discussion of “bail reform.”

In a time where local states and county governments are facing tougher and tougher fiscal challenges, the idea of replacing private sector commercial bail with public sector, taxpayer funded pretrial agencies and diversion programs is not only a poor public safety decision, but more importantly also a fiscally irresponsible one.

What the bail reform movement needs is less pie in the sky ideology, but rather more realistic, evidenced based SOLUTIONS to the problem.  Proposing bigger pretrial service programs with bigger budgets doesn’t solve jail overcrowding.  Convincing decision makers to get rid of a long standing, effective private sector business like the bail bond industry does not rehabilitate career criminals.  Letting more so called “non-violent” offenders out of jail with no supervision and no accountability does not increase public safety.  Instead all these types of ideological recommendations do is exacerbate the problems in the system and deflect decision makers from the real problems.   And please know that I feel the same way towards more commercial bail.  Bail is not the be-all end-all answer to the problems facing our criminal justice system.  I am convinced that the answer does not lie with one solution or the other.  Rather, I believe that the answer involves all aspects of the criminal justice system to work together.  The private sector doing what it does well and the public sector doing what it does well.  But to date, instead of trying to solve the real problems of the system, the public sector pretrial community through its “Bail Reform” movement is putting its efforts into creating market share instead of solutions.

It is time for counties around the country to start approaching the ills of the criminal justice system with a comprehensive approach that truly addresses the roots of the cause of the problems it is facing.  Additionally, our decision makers need to start turning to those in the private sector that have the knowledge and experience to help solve some of these challenges in smart, fiscally responsible ways.


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