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Bail Systems Need Innovation, not Abolition

After several years of radical changes to America’s bail systems, momentum has stalled. In New York, calls to roll back bail reforms have reached a fever pitch as crime soars. In Wisconsin, legislators are debating over a system that empowers judges to hold dangerous offenders in jail without needlessly detaining lower risk people. Reformers call these proposals regressive and unjust, while policymakers claim they are necessary for public safety. But legislators in both states and across the country may find an agreeable solution in a recent University of Chicago Law Review article that lays out a fresh approach to bail policy centered around innovation.

Instead of reducing bail amounts, restricting the discretion of judges, or simply abolishing cash bail for entire classes of accused criminals, the proposed system would marketize the bail system through publicly funded subsidies and incentives. The subsidies would cover private bail bondsmen fees, which tend to be around ten percent of a person’s total bail amount, up to a certain financial threshold. For example, if someone’s bail is set at $10,000, then the subsidy would cover the $1,000 fee charged by a bail bondsman to post the full bail amount, which is several orders of magnitude less than the cost of keeping someone in jail until trial. This approach ensures that low-risk, poor individuals can get out of jail without totally abolishing the cash bail system and its mechanisms for financial accountability.

But the real advantage of this proposed subsidy system is that it creates a market in which the incentives of bail bondsmen can be aligned with public safety. Bail bondsmen typically forfeit the full bail payments for any client who does not show up for court. The same is not necessarily true, however, for clients who commit new crimes while out on bond. Thus, in this new bail system, bondsmen would be forced to have a financial stake in both the client’s showing up to court and avoiding crime. Bondsmen would be allowed to analyze the risk of potential clients, select which clients they want to bail out, and use technology or support services to keep their clients out of trouble. These changes would transform the bail bond industry into a surety system that protects communities without restricting liberty.

Tying the financial incentives for public safety to bail bondsmen may seem counterintuitive to our modern conception of bail as self-paid ‘collateral’ to ensure the accused shows up to court. In fact, our understanding of bail is historically inaccurate. Until the early twentieth century, people in jail were forbidden from posting their own bail or for reimbursing anyone who posted their bail for them. America’s original bail system was designed to consider not only the financial cost of bail but also whether anyone was willing to take on the risks and responsibilities of having the jailed person in their custody.

Non-profits like the Bail Project and technologies like RePath have shown that innovative approaches to supervising people out on bail can improve public safety at lower costs than holding people in jail until trial. Marketizing bail would spur an explosion of public safety-oriented start-ups and non-profits that are incentivized to both depopulate jails and find effective ways to keep their clients out of crime. The market would reward firms that use strategies that actually work and hold them financially accountable for strategies that fail, creating a virtuous cycle that continuously makes the bail system safer.

Using the private sector to transform the bail system, instead of the government, is crucial to the success of reform efforts. The alternative is to use government-operated “risk and needs assessments” and “pre-trial services.” New Jersey spent hundreds of millions of dollars on a sprawling bureaucracy to replace its cash bail system. But that bureaucracy has failed to fund itself through filing fees as promised, nor has it reduced the racial disparities in the jail population. To the contrary, government officials have made racial disparities worse, with Black individuals comprising 60 percent of the jail population in 2020, up from 54 percent in the year before New Jersey changed its bail system.

Harnessing private sector innovation and efficiency to fix bail systems will lead to far better results, both for impoverished people in jail and communities facing the brunt of increased crime. Replacing calls for increasingly unpopular and dangerous bail reforms with market-based solutions can make America safer without forcing advocates to sacrifice their well-intentioned goal of making sure no one is kept in jail solely because of his poverty.

Devon Kurtz manages public safety policy at the Cicero Institute.