Top 5 Reasons Bail Reform is Bad for U.S. Taxpayers

If only there was no crime, there would be no need for the criminal justice system and all the dangerous, ugly and uncomfortable realities that it produces. But wishing for something doesn’t make it so, and we as a community have, over long periods of time, and through experimentation and improvement, built systems to deal with the existence of crime and the criminal activities of certain people.

And because we take the procedures around trial procedures and the notion of innocent until proven guilty seriously, we have ensured that there are mechanisms in place to allow people who are no threat to others and who have a stake in their community to live their lives unincarcerated as they wait for the slow wheels of the system to allow them their day in court.

The bail bond system that achieves these good outcomes is under attack for reasons that are larger than the problems it seeks to solve. We do not, in this blog, have the answers for solving America’s crime problems. But we provide a warning that by targeting the individuals and businesses that operate at the coal face of the problem, and who make a tangible difference in people’s lives at one of the worst moments and under the most stressful circumstances that they can find themselves in, that bail reform, as it is current proposed and (in some states) already enacted, has the potential to cause more harm than good.

There is a multitude of reasons why this well-intended objective is likely to result in poor outcomes and unforeseen impacts on the community at large as well as individuals – here are the top five reasons that you need to know.

1. Destroying an industry has indirect impacts.The economy that we operate in is a highly interconnected system with complicated relationships and unpredictable patterns. But one thing that is clear – for every enterprise and every job that’s destroyed, another one, two or ten are impacted. Every bail bonds operation that hires bondsmen, administrators, managers, clerical and facilities staff is also responsible for pushing money to grocery stores, dry cleaners, accountants and restaurants. Indirect economic activity can be many times the size of direct income and jobs, and making a policy shift that destroys a whole industry overnight will have impacts beyond the bail bonds industry itself.
2. Judges and law enforcement oppose bail reform because it takes complex decision-making out of the hands of experienced professionals and relies instead on algorithms and points systems to determine who gets released and who doesn’t. While most Americans are comfortable with letting an algorithm suggest the next movie they watch on Netflix, but hard-won wisdom and insight into the implications of detention or release is not so easily boiled down into such an algorithm, and the consequences of getting a decision wrong – whether by releasing someone that should not be released or holding someone unnecessarily, are so much greater.
3. The likely outcome of bail bonds reform will be a higher number of people being incarcerated, since a lack of accountability based on algorithmic and points-based systems will lead to a more conservative approach to release, in order to protect the bureaucrats and administrators of the system who do not deal with the front lines of the arrest and detention system. Higher incarceration levels means even more bureaucracy and public cost than is faced now.
4. Putting bail bonds providers out of business closes the door on a resource that many people can and do use for information and informal guidance, particularly those whose faith in formal government and law enforcement systems and representatives is, rightly or wrongly, limited.
5. Certain individuals, for example members of the LGBTQ community, face risks beyond most when experiencing detention. As we’ve stated, the causes and solutions to these problems are beyond the scope of what the bail bonds industry can do, but providing rapid and reliable access to bail resources provides higher risk individuals with options and pathways that may not be available in a reformed system. Individual costs in this area may be significant. Costs to the public as these outcomes are legally processed may be much higher.

The bottom line is that ongoing reform to parts of the criminal justice system should be welcomed, but it needs to be recognized that politically expedient solutions that simplify the problems around a perceived bad actor can have serious implications, and that a thoughtful approach that allows for all options to be tested and reviewed is called for, especially when lives and livelihoods are on the line. Let us proceed with caution and forethought.