Privatizing Probation and Parole

Policy Reports | Crime

No. 233
Thursday, June 01, 2000
by Morgan O. Reynolds

How Bail Works

Figure III - Initial Failure Rate of Released Defendants to Appear in Court

In accord with our civil liberties, the American criminal justice system allows most people who are arrested and charged with a crime to be released on bail pending trial.20 Bail operates on the principle that the criminally accused will be freed from jail once he guarantees his presence in court on a certain date by posting a significant sum of money. If he shows up, he gets his money back; if he doesn't, he suffers a major financial loss. Since most criminal defendants do not have enough money to post the full amount, the market provides the professional bail bondsman, or bail agent. If the bail agent is willing, he posts the entire bond in exchange for a fee, customarily 10 percent of the total bond. The bail agent loses all of the bond and usually his 10 percent commission if the defendant fails to show up in court.

"Private bail agents can stay in business only if the vast majority of their clients show up in court."

Financial Incentives. The private bail agent can stay in business only if the vast majority of his clients show up in court - 95 percent is the industry's break-even rule of thumb. Uncounted numbers of agents have gone broke because they failed to run their bonding business as a business. Surviving private bail agents are thus very efficient at ensuring the appearance of their clients - at no cost to the taxpayers. Frank Callahan, a bail agent in New Jersey, says, "I lose 100 percent of my profit if the guy jumps bail. That's a real incentive for me to monitor my people."21 Bail bondsmen expend a great deal of energy and ingenuity in getting their defendants to court. Usually bondsmen require a cosigner for the defendant's bond, typically a family member. Callahan says, "I try to get Mom and Dad on the hook." With family members' property at risk, the odds improve that the defendant will come to court. If he is a no-show, his family as well as the bondsman lose a lot of money.

Bounty Hunters and Fugitives. Another significant reason why private bail works is the use of bounty hunters, or "bail enforcement agents," to recover fugitives. Most work part-time because their primary business is bail bondsman or private investigator. Every state requires that they be licensed and regulated. In a majority of cases, bounty hunters directly apprehend fugitives. In the remaining cases, they locate and identify fugitives and let the police make the arrests. They are driven by a powerful incentive: they receive no compensation unless fugitives are returned to the court. Bounty hunters generally earn between $20,000 and $30,000 a year (at $1,000 to $2,000 per fugitive recovered) for their part-time efforts.

Comparing the Private and Public Systems. On the whole, the private bail bonding system seems to work well, especially compared with public pretrial release programs (discussed below).

  • As Figure III shows, only 15 percent of felony defendants released on surety bonds initially failed to appear in court, compared to 26 percent of those released on their own recognizance and 42 percent released on unsecured bonds, according to a 1992 Department of Justice study of the nation's 75 largest counties.22
  • Only 3 percent of defendants released on surety bonds are fugitives at the end of one year, compared to 9 percent for recognizance releases and 19 percent for unsecured bond releases.23 (One study claimed that private bail agents have a 0.8 percent fugitive rate versus 8.0 percent for unsecured public releases.24)
  • Felony defendants released on surety bonds had a 9 percent rearrest rate during their release compared to 15 percent for recognizance releases and 16 percent for those on unsecured bonds.25

"Only 15 percent of felony defendants on surety bonds initially failed to appear in court."

The difference in privately secured release and public release persists despite a considerable advantage that pretrial service agencies have. The pretrial service agencies get first crack at recommending the release of the most eligible defendants ("cream skimming") while bail bondsmen must deal with the remainder. The government bail system is administered by pretrial release bureaus, usually funded by county governments, that traditionally are subdivisions of state government but have significant local autonomy; the system operates alongside and in competition with commercial bail bonding. PTR staff members are government employees who interview defendants and recommend to judges whether they should be released. In this public system, defendants rarely post any kind of monetary bond and are usually released on their own recognizance. Under these "free bonds," the defendant simply promises the judge that he or she will appear in court. As a result, the accused has little or nothing to lose if he or she fails to appear ; accordingly, no-show and fugitive rates are far higher than under surety bonds or under the commercial bail system.26

"Under 'free bonds,' the accused has little or nothing to lose if he or she fails to appear."

A 1995 analysis of pretrial release data for Los Angeles, San Diego and San Francisco counties found that defendants released on surety bonds are accused of three times as many violent offenses as those on nonfinancial releases.27 They were almost twice as likely to have multiple prior violent convictions and by almost any measure were a more violent and criminal population. Presumably, they would be less likely to treat their court appearance obligations seriously, especially since they have more to lose by going through the entire process.

Yet the private bail system did much better at ensuring that defendants appear at required times than the nonfinancial release system. Defendants on nonfinancial releases were twice as likely to fail to appear as those released through a private surety company. Defendants on nonfinancial releases also were 50 percent more likely to remain fugitives for a year or more. For those without a prior record of arrest, nonfinancial releasees were almost five times more likely to fail to appear than surety releasees.28

Harris County (Houston), Texas, has experimented with a blended system in which some defendants have been released on a combination of cash or surety bail bond plus supervision by the county's pretrial services agency. This blended system seems to have sharply reduced failures to appear in court. From January 1994 to June 1997, the failure-to-appear rate as indicated by warrants issued was 8.5 percent for surety bond releases (8,246 warrants out of 97,176 straight surety bond defendants) but only 2.2 percent for the surety bond combined with pretrial supervision under judicial order (55 warrants issued out of 2,538 defendants).29

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