Bail Reform

On any given day, approximately half a million presumptively innocent individuals are held in pretrial detention. For the vast majority of those individuals, courts have set bail bond amounts that would grant their release if someone were willing to become the defendant’s bail “surety”—agreeing to forfeit the posted bond if the defendant does not abide by the conditions of release (e.g., refraining from committing new crimes, showing up for trial, etc.). The central function of such bail sureties is the same as for sureties generally: to guarantee or assure the fulfillment of certain obligations, with the sureties forfeiting the bond amounts if the obligations are breached. In short, bail sureties allow courts to grant defendants pre-trial freedom, while imposing a sensible degree of responsibility and accountability.

In setting bail bond amounts for defendants, courts are not guaranteeing that all will be released. Some are bad risks—they are likely to breach their obligations by violating the terms of their release. No reasonable fee will entice parties to become sureties for such defendants. Those defendants should and do remain incarcerated.

Our proposed solution would redirect some of the massive public subsidies currently given to jails to instead make bail sureties accessible even to the very poor. For defendants who are not bad risks, bail sureties typically charge fees of about 10 percent of the full bond amount to ensure that the terms of release will not be breached. If public subsidies covered that small fee, poor defendants who are good risks could be granted release (just as is true currently for defendants who are not so poor). But because a bail surety would be held liable for the full bond amount if a defendant breached their conditions of release, sureties would not post bonds for defendants who are bad risks, keeping bad risks in jail.