Fixing Bail

Abstract

A large portion of the jail population consists of criminal defendants whose guilt has not yet been established. A growing number of states have attempted to reduce jail populations in light of budget concerns, and many federal and state statutes already direct judges to detain defendants only if alternative conditions will not protect society or prevent pretrial flight. Despite these legislative directives, judges continue to jail too many defendants pretrial. Indeed, although statutes often direct judges not to impose financial conditions leading to detention, many pretrial detainees are in jail because they could not afford a bond. As argued here, the explanation for this lies, in part, in the skewed incentives of trial judges.

This Article applies an agency cost model to bail, observing that the interests of judges diverge from those of their legislative principals, causing them to err on the side of detention and stiff bond requirements. Judges receive little or no recognition for releasing defendants who pose little threat of flight or violence, and are subject to few penalties for detaining them. Yet they, unlike legislators, face the possibility of public scorn (and for elected judges, lost votes) for releasing defendants who flee or commit crimes. Compounding the problem, judges do not internalize the enormous costs to society of detaining millions of defendants pretrial. To fix bail, we must address the principal-agent problem at the heart of the system.

Due to separation of powers concerns, legislatures typically cannot use traditional means of monitoring and controlling agents, such as punishment through compensation reductions or termination of employment. I therefore propose a novel approach — the use of mandatory bail guidelines to rein in judicial discretion, and its concomitant agency costs, in the bail process. Although relying on judges to assess risk was once a necessary evil, the development of statistically-validated, actuarial risk assessment tools has made this solution feasible. Relying on actuarial models instead of hurried, poorly-incentivized judges would reduce agency costs and improve accuracy, bringing meaningful change to a deeply troubled system.

Keywords: bail, pretrial detention, agency costs, dangerousness, risk assessment