To Reform Bail, Subsidize It Like Jails, Professors Say in New Paper

John Duffy, Rich Hynes Publish Reform Proposal in University of Chicago Law Review
John Duffy and Rich Hynes

In their new paper, professors John Duffy and Rich Hynes explore bail reform through the lens of law and economics. Photos by Julia Davis and Jack Looney

October 18, 2021

Professors John Duffy and Rich Hynes of the University of Virginia School of Law are proposing an approach to bail reform that is designed to decrease the pretrial incarceration of defendants, who are presumed innocent until proven guilty. They say the answer lies in government subsidizing bail, as it already does jail.

“Our society is subsidizing jail 100%, and bail 0%, even though historically jail and bail were both considered close substitutes for each other,” Duffy said. “Our basic message concerning excessive pretrial incarceration is simple: Follow the money. If society subsidizes something to the tune of billions of dollars, it should not be surprised when it gets a lot of that thing.”

The professors’ proposal, which draws upon some surprising historical discoveries about bail, was published in their article “Asymmetric Subsidies and the Bail Crisis” this month in the University of Chicago Law Review.

The professors note that when rich and middle-class people are accused of crimes, they are very likely to get out of jail on bail. The poor, however, tend to sit in jail, sometimes for months or years as they await trial, while society pays anywhere from $50 to $100 per day for their incarceration. 

“The rich might post a cash bail,” Hynes said, “but even middle-class defendants can typically obtain release using a bail bondsman or a ‘surety.’”

The term “surety” refers generally to a person who takes on responsibility for another’s obligation. Currently, defendants may pay about 10% on the bond amount as a fee to the bail surety. The surety will then post the full bond amount, which could be forfeited if the accused fails to appear for trial or otherwise violates court-imposed obligations. The threat of forfeiture gives bail sureties an economic incentive to post bonds only for defendants who are good risks — those not likely to flee — and also to make sure those defendants do in fact show up for trial.

The professors argue that government should provide the same opportunity for release, through subsidies, for poor defendants.

The government would cap the amount of the subsidy at the cost of jail and would require the bail sureties to post hefty bonds that would be forfeited if the defendants fail to appear for trial or otherwise violate the terms of their release.

The system would then work just as it currently does for defendants who can afford bail sureties — incentivizing the sureties to post bonds only for defendants deemed low risk and making sure those defendants show up for trial.   

Hynes, an expert in consumer finance and law and economics, is the John Allan Love Professor of Law and the Nicholas E. Chimicles Research Professor of Business Law and Regulation at UVA. Duffy is an expert on administrative and regulatory law, with an emphasis on intellectual property regulation. He serves as the Samuel H. McCoy II Professor of Law and the Paul G. Mahoney Research Professor of Law at UVA. He was recently elected to the American Law Institute.

They answered questions for the Law School about their paper, including about challenges their proposal might face.

You state in the article that your proposal is likely to seem “utterly wrong” to a modern reader. Why so?

Duffy: Modern readers are likely to make two interrelated assumptions about bail. First, they are likely to think of bail as the opposite of jail — with bail meaning pretrial freedom, and jail, pretrial incarceration. Second, modern readers are likely to think of bail as money or other collateral posted by the defendant as the price for that pretrial freedom, with the collateral used to incentivize the defendant to return for trial. To a reader making those two assumptions, our proposal sounds like a convoluted way of just lowering bail amounts. It sounds as if we are proposing that, after the government sets a price for a defendant’s pretrial freedom, it should turn around subsidize that price for those who can’t afford it. Crazy, right? Wrong.

It turns out that both of those modern assumptions are absolutely and unequivocally incorrect under a traditional approach to bail. First, bail was historically viewed as placing defendants into the “friendly custody” of people willing to serve as “sureties” in place of the “four walls” of a jail — those are [William] Blackstone’s words. [Blackstone was a famous 18th-century author of treatises on English law.] The bail sureties were thought of as jailors of the defendant’s own choosing. Or as Justice Ruth Bader Ginsburg summarized it in a modern Supreme Court opinion, bail is not the “opposite” of jail; the two are different “methods of retaining control over a defendant’s person.” Once that point is understood, a modern law-and-economics scholar is naturally going to think: “If the two are substitutes for each other, why is one so heavily subsidized and the other not at all?”

The second point is that, historically, defendants could never post their own bail. Indeed, a defendant was barred even from reimbursing the bail sureties for their losses in the event the defendant took flight before trial. In other words, the sting of loss always had to operate on sureties, never on the defendant. The idea of bail as a wealth-based system — as a way for defendants to purchase their own freedom for a price — is wholly alien to the traditions of bail. 

Hynes: Historically, bail sureties had to be quite careful about whom to bail, and they had to keep tabs on them to make sure they weren’t planning to flee. It’s that type of surety relationship that we propose subsidizing. The government’s subsidies are not buying the defendant’s freedom at a price set by the government — that result could be achieved simply by setting bail at zero. Rather, the government is subsidizing sureties who will evaluate the riskiness of release, take some responsibility for the defendant, and pay to the government a potentially hefty price (the full bail bond amount) if the defendant flees.

How much would your proposed subsidy system cost taxpayers?

Hynes: Almost certainly nothing. In fact, our system should save governments a lot of money. 

The reason we can say this with such confidence is that a great deal of data is available about pretrial incarceration, particularly about the costs of jail. Jail is a very expensive option for ensuring that defendants show up for trial. Conservative estimates place that cost at well over $1,000 per month, and pretrial detention can easily last months. Many of those sitting in jail have already had the amount of bail sureties necessary for their release set by judges, and those amounts are not high — often in the low thousands of dollars. With a subsidy of even a few hundred dollars, private firms are highly likely to accept the responsibility of becoming sureties for many defendants. Not all defendants of course. The riskiest will remain in jail, but that’s precisely the result society should want. The most socially expensive risk control measure is reserved for the cases in which it’s truly necessary. 

Why did our society end up subsidizing jail over bail “asymmetrically,” as you say?

Duffy: Two and half centuries ago, there was no asymmetry: Governments did not pay for either jail or bail. Then in the early 1770s, early English prison reform advocates discovered that some people who had gone to trial and were exonerated remained incarcerated because they couldn’t afford to pay their pretrial jail fees. That revelation shocked many, and in 1774, the English Parliament began partially subsidizing jail by barring the continued detention of anyone acquitted of charges and paying jailers compensation for any fees lost from freeing the acquitted. Obviously, that step was a sensible one — no one thinks the acquitted should stay in jail because they’re too poor to pay jail fees.

At the time, subsidies for bail sureties would not have occurred to reformers because bail was viewed not so much as a financial surety system but as a system of sureties based on family and personal connections. Pretrial detention periods were also not necessarily as long as they are in our modern trial system. And so the seed of the asymmetry was planted in 1774, and it slowly grew without anyone carefully questioning the reasons for the difference.

Hynes: This is very much a situation where each step in the process of getting to our current system seemed reasonable at the time, but the end result now seems unreasonable. It’s therefore a perfect time for scholars to go back and to rethink the area from first principles. 

Would your proposal benefit the commercial bail industry, which some have criticized as predatory?

Hynes: Our thesis requires subsidies for bail, but the subsidies need not necessarily go to for-profit, commercial bail entities. There is a vigorous debate in the law-and-economics literature about whether nonprofit entities are better or worse than for-profit entities in performing certain functions. For example, hospital care and education are two areas where nonprofit entities tend to be common, although they coexist with some for-profit entities. In this article, we take no position about whether bail subsidies should be available to all bail entities or should be restricted to certain types of entities, such as nonprofits.

We do believe, however, that there should be competition among multiple bail sureties both because competition can lower costs to the government and because the presence of multiple bail entities can prevent the errors or biases of any one entity keeping too many defendants in jail.

Duffy: We want to be very clear that our article has not been financially supported by any outside person, group or entity — whether part of the commercial bail industry or otherwise. Our article presents a reform proposal based solely on the history and traditions of bail and on a modern law-and-economics approach to analyzing legal issues.

You mention in your article the case of Kalief Browder, a teen who was held in pretrial detention for three years on Rikers Island for allegedly stealing a backpack. Though the charges were ultimately dropped, Browder committed suicide after his release due to the toll of incarceration. What lessons do you draw from that case?

Duffy: The case of Kalief Browder should shock the conscience of any reasonable person. Many stories have, however, inaccurately asserted that Browder spent three years in jail because his family could not afford a $3,000 bail surety. The reality is that, while Browder’s family initially could not raise money to buy a $3,000 bail surety, they were able to do so the month after his arrest. At that time, however, they discovered that he had been reclassified as unbailable due to some complex rules enforced by New York State. 

In our view, the Browder case shows both the need for reform and the reason why states should not adopt alternative reforms like the one recently adopted by New Jersey — which abolished defendants’ constitutional right to bail and now relies entirely on unchecked government actors armed with computer algorithms to decide whom to release and whom to jail. We agree with other reformers that Kalief Browder’s pretrial incarceration was senseless. The courts initially determined that a mere $3,000 surety would be enough to justify his release, and a private surety was willing to shoulder that responsibility for a few hundred dollars. Instead, New York was spending easily hundreds per week incarcerating Browder. Bail subsidies should have been available and, if they were, would have led to Browder’s prompt release.

Yet the years Browder spent in jail are not attributable to the bail system. Rather, it was a modern governmental bureaucracy that classified him as unbailable. Giving even more power to such bureaucracies and removing any private check on them — as New Jersey has done — is not a step forward. In a 2020 referendum, the voters of California resoundingly rejected a reform proposal similar to New Jersey’s, and we think they were quite wise to do so.

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

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