The Right to Bail

The Eighth Amendment to the U.S. Constitution states that, “excessive bail shall not be required.” The U.S. Supreme Court has ruled that the Constitution permits holding a defendant without bail pending a criminal trial and that no absolute right to bail exists.

Proponents of bail reform across the country continually shout to anyone who will listen that, “on any given day, people who haven’t been found guilty of any crime are detained because of an inability to post bail.”

Fact: people are in jail because they have committed a crime.

Judges make a determination to release someone from jail or hold them in jail. This decision is based on many factors, including the individual’s alleged crime, criminal history and public safety risk to the community. Bail is only one method of release. The right to bail exists unless there is sufficient reason not to grant it.

Alex Tabarrok, who wrote an article for Marginal Revolution titled, “We Cannot Avoid the Ugly Tradeoffs of Bail Reform,” said this regarding bail reform efforts:

In the days when the default was that every accused person was held before trial, the idea of money bail was seen as a liberal, progressive measure that allowed more people to get out of jail. Today the natural default is seen as release until trial and bail is therefore perceived as a conservative, regressive measure that unjustly and unfairly keep poor people in jail. As a result, reformers are trying to reduce or eliminate money bail but they are doing so without thought for the ugly tradeoffs.”

Tradeoff: a balance achieved between two desirable but incompatible features; a balancing of factors, all of which are not attainable at the same time.

Unaffordable bail.

Sometimes people are held in jail because they can’t afford bail. If they are accused of a non-violent misdemeanor offense and have no criminal history, the bail industry supports release on one’s own recognizance. However just because you are poor doesn’t translate into free release from jail. Judges make decisions every day to keep people in jail because they deem them a danger to the public.

Blindly stating people are not released from jail because they can’t afford money bail is misleading and dangerous. Despite not yet being found guilty of their alleged crime, many people remain in jail due the seriousness of the alleged crime, criminal history, risk assessment tool flagging them as dangerous, probation or immigration holds.

Mr. Tabarrok further wrote in the above article:

Bail reformers are blind to the tradeoffs that must be made between public safety and the rights of defendants. Since the reformers are blind to these tradeoffs, they can’t see that money bail actually helps to alleviate these tradeoffs. Reformers think that money bail simply keeps the poor in jail but in fact money bail is a half-way house between release on own recognizance and hold until trial. Money bail lets judges release more people. Bail reformers assume that if they eliminate money bail then judges will release everyone. In fact, as the Dylann Roof case illustrates, that is never going to happen. And when the public realizes that judges are releasing lots of defendants who subsequently commit more crimes there will be a backlash, as is already evident in Chicago. By eliminating the half-way house of money bail, bail reformers force judges to either release or hold until trial. Some people who under the current system are released on bail will, under the new system, be held until trial. Indeed, the unintended consequence of bail reform may be that more people are held until trial with no possibility of release.”

Commercial bail is a tradeoff that works in the criminal justice system and offers a layer of accountability no other release system provides. The men and women in the industry work with all socio-economic levels to help individuals return to their homes, jobs and communities pending resolution of their case. The system is as it should be, user-funded and not taxpayer-funded.

In a research paper written by Mr. Taborrok and Eric Helland titled, “The Fugitive: Evidence on Public versus Private Law Enforcement from Bail Jumping,” their conclusions stated the following:

Compared to similar defendants released using other methods, defendants released on commercial bail are much more likely to show up at trial and are much more likely to be recaptured should they flee.”

Bail reform is not a one-sided discussion. It should involve all those involved in the criminal justice system and not just those individuals who advocate for blanket-wide free release for those who commit criminal acts. Accountability should always remain in the equation and victims of crime should not be dismissed.