Asymmetric Subsidies and the Bail Crisis

77 Pages Posted: 18 Oct 2021 Last revised: 21 Oct 2021

See all articles by John F. Duffy

John F. Duffy

University of Virginia School of Law

Richard M. Hynes

University of Virginia School of Law

Date Written: October 15, 2021

Abstract

When individuals are arrested or indicted for a crime, governments have legitimate interests in assuring that those individuals show up for future legal proceedings and also do not cause more social harm in the meanwhile. To serve those legitimate interests, governments may restrain the personal liberty of those presumptively innocent individuals—traditionally accomplished either by incarceration or by release subject to certain sureties and conditions. The choice, in short, is between jail and bail.

Currently, governments skew that choice by subsidizing the costs of jail but not bail. The result—wholly predictable given the size and asymmetric nature of the subsidy—is that the United States maintains an inefficiently large jail population that both costs taxpayers too much and excessively limits the liberty of too many. Prior commentators and reformers have correctly identified the overuse of pretrial detention in jails as a major public policy crisis and have urged substantial reforms to current bail processes up to and including the abolition of state constitutional rights to bail (as one state has recently done). We believe that the hostility toward bail overlooks the root cause of the problem, which is the asymmetric subsidization of jail over bail. We propose a balanced subsidization system that can preserve the beneficial aspects of a traditional bail surety system while (i) reducing unnecessary and inefficient restraints on individual liberty, (ii) addressing the distributional inequities of current practices, and (iii) saving taxpayers billions of dollars per year.

Keywords: Law and economics, legal history, bail, criminal procedural, bonding, sureties, legal innovation, law and technology

JEL Classification: K00, K10, K14, K20, K40, K41, K42

Suggested Citation

Duffy, John Fitzgerald and Hynes, Richard M., Asymmetric Subsidies and the Bail Crisis (October 15, 2021). 88 U. Chi. L. Rev. 1285 (2021), University of Chicago Law Review, Vol. 88, No. 1285, 2021, Virginia Public Law and Legal Theory Research Paper No. 2021-49, Virginia Law and Economics Research Paper No. 2021-24, Available at SSRN: https://ssrn.com/abstract=3943442

John Fitzgerald Duffy (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-243-8544 (Phone)

HOME PAGE: http://www.law.virginia.edu/lawweb/faculty.nsf/FHPbI/2141954

Richard M. Hynes

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-3743 (Phone)

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