We heard a lot during the recent attempt by anti-bail lobbyists to drag Colorado into the same hole New Jersey now finds itself in about how unfair and ineffective the cash bail system is. The entire bail bonds enterprise is corrupt and needs to be abandoned, those lobbyists and their political allies warned. What you didn’t hear were facts to back up their arguments. Nor did you hear any concrete suggestions about how the system could be tweaked to address their concerns. Just “it’s unfair and must be discarded.”

An objective look at the big picture, however, reveals just how unfair and regressive it would be to discard bail in Adams County, Broomfield County, Weld County and Denver. While a recent Texas study refutes the notion that bail is an ineffective way to compel defendants to live up to their obligations under the law. We’ll get to the unfairness part later. But let’s start with that study.

Reaffirming the Important Work of the Bondsman

The yearlong study was conducted by the University of Texas. It examined how likely the accused were to show up for their court dates. It also looked at what impact, if any, the nature of their release had on the likelihood of them showing up for that court date. That is, were they more likely to show up if they were released on bond or without any form of bail being involved?

The study examined more than 22,000 cases and what it found was both alarming and reassuring. On the alarming side of things, it found that 25% of felony defendants failed to appear in court on the appointed day. That's a staggering number when you consider the seriousness of many of the crimes involved. However, it also found that those released on bail bonds were more likely to appear as ordered than those released without bail.

The study concluded that one of the reasons those released on a commercial bond were more likely to appear was due to the efforts of the bondsman. Because these individuals underwrite the bond for defendants, they stand to lose if the accused fails to show up in court. As a result, they stay involved with the accused, reminding them of their duty, making sure they appear on the appointed date.

Those released on what are called "pretrial services bonds" were the least likely to appear. A pretrial services bond is a fancy name for being released without bail. In some cases, the person will be required to check in periodically. In other cases, they may be forbidden from drinking alcohol or possessing a firearm, and in still other cases, they may be subjected to periodic drug testing. But no matter. People released without bail in this manner were less likely to appear in court on the assigned day.

Is a Bail Free Society Really Fair?

Now that we've established the importance of the bail agent in ensuring the integrity of the justice system, let's look at that other favorite talking point of the anti-bail movement: fairness.

We’re told that bail bonding is unfair because wealthy individuals can meet whatever bail is imposed on them, while poor individuals can't. And in all honesty, in cases where a person is accused of some minor infraction, everyone can agree they should not molder in jail simply because they are unable to post a $250 bond, or something of that nature. In that regard, corrective steps need to be taken. And organizations like the Bronx Freedom Fund have demonstrated the issue can be effectively addressed without discarding bail as a whole.

But what would happen if the entire bail system was tossed and everyone was simply released with a promise they’ll show up on the appointed date? By now there’s enough evidence to prove this is what happens:

• The accused don’t show up - In El Paso County, Texas cash bail was eliminated in favor of a “we promise to appear” system. As a result, court no-shows skyrocketed from 10% during the bail era to more than 40% once bail was eliminated. How is it fair that 40% of victims now don’t receive justice from the system?
• Judges become tyrants - California’s new no-bail law grants judges unheard of power to hold anyone they want for as long they want. That means that judge A could release someone without bail for a certain offense, while judge B in another California county could hold someone else accused of the exact same crime in jail indefinitely. Exactly how is that fair?
• Taxpayers are lied to - Anti-bail lobbyists promise that releasing everyone from jail will save states millions. What they don’t tell you is that someone has to pay to monitor all those people. And someone has to pay to track down all the fugitives the new system is creating (a job bondsmen used to do at no cost to the state). In California alone implementing the new system will cost anywhere from $200-$300 million. How is misleading taxpayers fair to them?

The Bottom Line

As forward-thinking organizations like the Bronx Freedom Fund have shown real bail reform is both possible and easy to implement. That’s bad news for high paid anti-bail lobbyists, so you won’t hear many of them talking about it. But the next time the anti-bail circus rolls into town make sure you tell them you don’t need their brand of snake oil.