An Accessible Bail Surety System
On any given day, approximately a half-million presumptively innocent individuals are held in pretrial detention. For the vast majority of those individuals, the courts have set bail bond amounts that would justify release if someone were willing to become the defendant’s bail “surety” for the bond amount—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 of 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, in releasing defendants, to impose a sensible degree of responsibility and accountability.
In setting of bail bond amounts for defendants, courts are not guaranteeing that all of those defendants will be released. Some of those defendants are bad risks—they are likely to breach their obligations by violating their terms of 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 for jails to 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 guarantee that the terms of release will not be breached. If public subsidies covered that small fee, poor defendants who are good risks could gain release (just as is true currently for defendants who are not so poor). But because bail sureties could be held liable for the full bond amounts for defendants who breached their conditions of release, sureties would not post bonds for defendants who are bad risks. Those defendants would stay in jail, as they should.
Comment Letter: Federal Trade Commission’s Proposed Non-Compete Rule