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Comment by syrrim | Hacker News Reader

If I had to speculate, I'd say this is primarily a reaction to improved ability to track people, such that it is next to impossible for a person to jump bail. You can't get on a plane, or otherwise try and cross the border, because your passport will be checked. If you drive across the country, then your credit cards/bank accounts will be tracked, and security cameras can pick up and recognize your face. I imagine that there is today fewer people not showing up to court and getting away with it.

If so, then it seems like a good trade-off - those facing trial have more freedom, and threats to there freedom can't be used in a coercive manner, but those who aren't facing trial have less privacy.

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It's mostly due to the increasing evidence of:

* Clear biases in distribution of bail vs. non-bail gated release

* The substantially unbalanced cost of bail for poor vs. middle-class and up. Basically: if your bail costs $1000 and you make $50k/year you can probably arrange cash to cover it. If you make 20k/year you probably cannot, so your option is to lose $100 - bail bond is not returned to you - or you literally go to jail without a trial.

But the improved ability to track people probably helps sell it politically to the "tough on crime" crowd.

Faster due process has a much bigger impact than tracking people down (which is both expensive and dangerous).

There will also likely be an increase in "no bond" holds until the court date.

This is a step in the right direction, but the entire incarceration machine needs an overhaul/downsize.

my inclination is that all non-violent offenses should be on recognizance (or however that's worded) unless there's historic evidence that you will miss your court dates. If you have previously skipped court dates then we shouldn't necessarily assume that you would make future court dates, so why do we believe bail would mean anything?

Would you call physical theft a violent or non-violent crime? How about if that theft involved property damage?

Honestly: I don't know. Seriously, I'm not saying these problems are easy, I'm saying that the current policies of anything and everything can lead to jail time results in long term negative effects that exacerbate existing biases. The current bail system feeds on this - if all crimes carry the potential for jail time, then all defendants can be threatened with jail time in exchange for a plea bargain that has a false confession.

Let's say we go for something like "no direct victims" e.g. possession, drunk and disorderly, etc have no jail penalty, theft or violent crime does? But then how to you class smashing a window during a protest: Is that deserving of jail time? If not, then why is there the threat of incarceration pending bail? Again: I don't know, none of this really has easy yes/no answers.

What is and isn't a violent crime is already well-defined.

Mugging is a violent crime, but shoplifting isn't. https://en.wikipedia.org/wiki/Violent_crime

The thing is, I don't really care if people are using illegal substances or selling illegal services / objects between each other.

But I get pretty pissed off when someone steals my bike, smashes my car, wakes me up in the middle of the night or similar. These are not necessarily violent, but they still are things I feel like we should prevent more than the other types.

These issues with bonds have nothing to do with crime prevention. And whether or not you are pissed off has no bearing on how an innocent person should be treated.

Oh, and in the US, every person is innocent until proven guilty in the court of law. So by definition, every bond is issued to an innocent person.

Bail does not effect your ability to track people - what tracking do you think it adds? Or do you mean the bit where bail ensure that all the arrested poor people are kept in jail?

>or you literally go to jail without a trial.

You go to jail until your trial. Not quite the same thing.

Both are true. You go to jail without a trial until your trial is done.

"You go to jail until your trial."

Uh. No one goes to 'trial' anymore.

I go, lets say I'm arrested for some reason (wrong place wrong time, being at a protest, being the wrong colour for the neighborhood). Ican't afford bail, now I go to jail.

2 months later the charges are dropped.

I spent two months in jail, I didn't even have a trial, so I wasn't even in jail "until my trial", I was jailed for no reason. That is enough to get me fired - I didn't come to work, and US law doesn't protect me from being fired when a court prevents me from going to work.

The /only/ reasons for jail before trial is if there is a risk to the public or a documented risk of not appearing. The existing bail laws punish you according to what prosecution and police can get away with, and functionally turn "bail law" into jail for the non-rich, fines for the middle class. Maybe that could be reduced if the government were considered liable for any and all losses suffered by someone who is innocent, including loss of employment. That would given prosecutors and police some balance to the incentives to prevent bail or demand large bail amounts.

You go to jail and that makes you more pliable for a plea deal.

> If I had to speculate, I'd say this is primarily a reaction to improved ability to track people, such that it is next to impossible for a person to jump bail.

There may be some sense in which it is enabled by that, but it's definitely a reaction to a national grassroots political movement (stronger in the Dem party, but not exclusive to it) against the money bail system as economically unjust, plus the relative successful model of Washington, D.C., in eliminating money bail even ahead of the national movement gaining traction.

I remember reading somebody’s life story (I think one of my relatives), who mentioned that a strange man showed up on his doorstep when he was a little kid in the early 1900s. His father talked with the man, gave him some money, and sent him away.

Years later, the father explained that the man was the father’s brother, who had committed some crime before the turn of the century, and would occasionally show up saying he was down on his luck.

Whether the story was true, what stuck with me was the fact that there was once a time that somebody could leave town and largely create a brand-new identity. I guess it’s possible today, but it’s not easy. For starters, you need a social security number, and businesses are able to check whether those are valid better than they could a few years ago.

> because your passport will be checked.

That's far more a concern for people trying to re-enter the United States. For those leaving, this is hardly an impediment.

Your passport is checked when you leave the U.S. It’s done electronically though, so if your passport is clear you don’t even notice it when you leave (unlike say the exit Visa stamp you get in Schegen countries). If your passport comes back flagged when you’re leaving the U.S. the FBI or Marshall’s or whoever can apprehend you.

How does the US electronically check my passport when driving into Canada? I can seen Canada doing it on entry and relaying that to the US but otherwise, how does that check get done?

The US has good relations with Canada; and Canada is not particularly fond of criminals entering their country. When they check your passport, they will notice you are out on bail and, at best, deny you entry. (The Canadian border also happens to be the US border, so they might also refer the incident to US authorities)

After some Googling, it appears that the U.S. land border crossing points are less monitored. I've only utilized U.S. air and sea crossings, both of which do have electronic exit visas (because the shipline or airline reports their passenger manifest to the authorities). So, yes, no check is done when using a land crossing.

People who skip bail, by and large, don't get on a plane or drive across the country.

Also, the bail system isn't designed to only incentivize defendants themselves to show up to court. The bail bondsman has the financial incentive and the legal right to apprehend and deliver a defendant who has skipped bail. Removing the bail bondsman from the equation only increases the public cost of reapprehending these defendants.

Edit: I should add...people who get caught committing crimes are generally not the best at responding to the incentive of not going to jail, or else they wouldn’t get caught committing crimes in the first place. So any mechanism that relies on this incentive is unlikely to be effective. Introducing a third party with vested interests at no additional cost is a non-trivial benefit of the bail system. Although maybe the police unions are happy to transfer the workload (and added hours!) to their members.

It would also be a lot cheaper to dispense with courts and replace them with private arbitrators with the power to send people to prison.

A system where the decision on whether you go to jail or not is made by bail bondsmen is not just. If they decide not to grant you a bond, to where do you appeal?

Or dispense with prison in the vast majority of cases.

Where do you appeal if the judge decides not to release you of your own recognizance? Where do you appeal of the judge decides not to even offer you bail, for that matter?

By the time you're dealing with a bail bondsman, you're already in jail, and a judge has likely decided not to release you of your own recognizance. The question is whether or not you have to stay there until trial.

> Where do you appeal of the judge decides not to even offer you bail, for that matter?

To a higher court, as with any other judicial order? This is how things work in normal common law countries like the UK, Canada and Australia.

Eventually you run out of appeals, or the higher court refuses to hear your appeal, just as you eventually run out of bail bondsmen. I don't see the situation as any different.

You're missing the very basic point: bail hearings are before you're on trial. Which is the problem: even if you did not commit the crime for which you're charged, you end up in jail because you literally cannot afford not to. Then you lose your job, because you know, you were in jail.

There are innumerable cases where innocent people have been arrested (think protests that are protected by the first amendment, or simple mistakes, or malice) where the charges are dropped or dismissed. You could already have lost your job due to being wrongfully imprisoned, or if you could afford the bond you're out the bond (it does. not. get. refunded. It's pure profit for bail bond companies).

There are also cases where bail has been used to get people who are innocent to take plea agreements, which inflates police/prosecutor success rates while simultaneously allowing the actual criminal to go free. The basic statement is "take this community service plea or we'll set your bail too high for you to afford". Again, numerous documented cases of this exist.

Finally, a person who skips bail when they aren't having to pay money, are reasonably likely to skip bail anyway, and for the rich the money doesn't matter. Robbert Durst skipped bail on a $300k amount because 300k literally didn't matter to him, even ignoring the low amount that was asked - again, bias in bail system frequently results in significantly higher bail amounts for people of colour.

> Which is the problem: even if you did not commit the crime for which you're charged, you end up in jail because you literally cannot afford not to. Then you lose your job, because you know, you were in jail.

Yes; putting people in jail is a mechanism for making sure people show up to court. It is a very effective mechanism. And it remains a mechanism even after California's reforms.

There's no civil right to receive an offer of bail. Perhaps there should be some sort of legal protection so people don't lose their jobs on account of merely being arrested, but the court always has the option not to offer bail and just hold you until trial. And I think this reform actually makes that outcome more likely, which I'll explain more below.

> or if you could afford the bond you're out the bond (it does. not. get. refunded. It's pure profit for bail bond companies).

Bail bondsmen are essentially loaning you money to pay bail, it's just that you pay the interest up front as a lump sum payment. (Also, you're securing the loan by granting the bail bondsman the legal right to apprehend you and bring you to jail if you skip your court date, which is why bail bonds are still affordable despite the obviously high risk inherent in them.)

> There are also cases where bail has been used to get people who are innocent to take plea agreements, which inflates police/prosecutor success rates while simultaneously allowing the actual criminal to go free. The basic statement is "take this community service plea or we'll set your bail too high for you to afford". Again, numerous documented cases of this exist.

Sources?

In any case, the essential problem is that someone has to estimate a combination of three factors:

* The probability that the suspect will miss their court date

* The cost of trying to apprehend the suspect and return them to jail, if they miss their court date

* The probability of success of trying to apprehend the suspect and return them to jail, if they miss their court date

The bail system solves this problem. If a bail bondsman is willing to bet their money on you in exchange for a certain bond amount, and you can afford the bond amount, you don't have to stay in jail. The bail bondsman has the incentive to accurately estimate all of these factors, and also has greater knowledge of them, because the bail bondsman himself is often the one to apprehend you if you skip court. If the bail bondsman miscalculates and offers bail to risky suspects, he loses money and goes out of business; if he miscalculates and doesn't offer bail to safe suspects, he loses money to his competitors. So not only is the bail bondsman making better bets, he's also only risking his own money.

Having bureaucrats making the decision and sheriff's deputies trying to round up people who missed their court date is going to be far less efficient, and will probably result in more people staying in jail, because there will be a much stronger incentive to err in the direction of keeping people in jail. A bail bondsman who never issues any bail bonds goes out of business; a county that never releases suspects of their own recognizance has 100% of suspects show up to their court dates.

Once we recognize the fact that it really sucks to get arrested and sent to jail, and that many innocent people are arrested and sent to jail and suffer serious life consequences as a result, then the question becomes: how do we effectively reduce this suffering while still being reasonably certain that criminal defendants don't miss court? I think the bail system likely solves this problem far more effectively, measured purely in terms of reducing the suffering of the people getting arrested than the California Bureau Of Arbitrarily Deciding Whether Or Not To Release You Of Your Own Recognizance.

> There's no civil right to receive an offer of bail. You have a civil right to not be placed in jail for a crime you didn't commit.

> Bail bondsmen are essentially loaning you money to pay bail With a 10% interest rate, except that's not per annum, that's until your trial or charges are dropped, so it's closer to 200% interest rate assuming a two week turn around.

> Sources?

The most basic google searches will give you examples. Even John Oliver has done a section on the abuse of bail to coerce guilty pleas. Just as an example (first hit on google) https://www.theatlantic.com/magazine/archive/2017/09/innocen...

> The probability that the suspect will miss their court date Missing your court date is always (and remains) something that results in immediate incarceration. So the impetus to not miss their court date is compulsory (no-bail) incarceration. Presumably we consider incarceration a motivation?

> The cost of trying to apprehend the suspect and return them to jail, if they miss their court date Vastly vastly cheaper than keeping them in jail -- especially given for minor crimes skipping bail doesn't result in a manhunt, it literally just means a warrant is issued and the next time a defendant encounters police they will be arrested, and again, not have the opportunity of bail.

The bail system does not solve any of these problems - the fact that even when money is involved people still skip bail should tell you something. The only thing that the current bail system ensures is that poor defendants will go to jail, even if they're innocent.

Remember that people who are put in jail because they can't afford bail are not compensated for the costs they are subjected to, even if the charges are dropped.

> You have a civil right to not be placed in jail for a crime you didn't commit.

No, you don't. You have a civil right not to be imprisoned indefinitely, but you can be held in jail from the moment you're arrested to the moment a "not guilty" verdict is reached by a jury.

If that were the case, then why bother having bail hearings? Just set bail uniformly to some high number like $1M, payable only through a bail bond agency, and let those agents bid on how much premium to charge. Credible people would pay market rate for a collateralized or uncollateralized personal loan, because that's what they could have gotten from a bank in the first place. Oh right, poor people can't get loans.

You see, the problem isn't the estimation of non-appearance risk, it's that poor people are inherently more financially risky, so they get charged more for the same loan. But financial risk isn't the same as non-appearance risk. Financializing the court-appearance guarantee is imposing the cost of financial risk on some people for no reason, by demanding that they get a loan.

I like this framing, but I don't think your analysis is correct. There's no financial risk involved in making bail bond loans because it's impossible to default without skipping bail. Further, there's zero incentive to default - the money is never in the borrower's hands, so they can't recoup the principal, and the interest is prepaid, so defaulting doesn't save that payment.

In essence, a bail loan is actually a perfectly secured loan - it is secured by the court holding the principal in escrow. There is no "repayment risk", only risk that the bail will be forfeited due to non-appearance, which is exactly equal to the flight risk.

There’s no financial risk: the bondsman pays bail directly to the court on behalf of the defendant, and the bail is returned to the bondsman upon the defendant successfully appearing. This is what gives the bondsman the legal right to apprehend the defendant if he does not appear in court. The defendant can’t take the bail money and run. If he could, bail bonds would not be a viable business.

If you intend to show up to court, and can get a personal loan large enough to cover bail, of course you’re better off doing that. And if you skip bail and don’t get the money back and have no means to repay that personal loan, you carry that debt with you and you cease to have the ability to take out large personal loans, so skipping bail isn’t really a sustainable life strategy in that case, either. And yeah, I’d actually be in favor of sliding-scale bail so rich people couldn’t just pay their own bail either, though you’d need to figure out what to do if you ever arrested Jeff Bezos because I don’t think Bill Gates and Warren Buffet are gonna put their money together to be his bondsmen :)

> people who get caught committing crimes are generally not the best at responding to the incentive of not going to jail

People who are arrested and charged for crimes (charges which in many cases are dropped before trial) are not necessarily people who have been caught committing crimes.

> people who get caught committing crimes are generally not the best at responding to the incentive of not going to jail

The pre-trial services model does not rely exclusively on that incentive, any more than the money bail system does.

> Introducing a third party with vested interests at no additional cost

The involvement of bail bondsmen has a cost; the fact that the major direct cost is paid for by what amounts to a tax on the (potentially wrongly) arrested doesn't mean it isn't a cost.

> The involvement of bail bondsmen has a cost; the fact that the major direct cost is paid for by what amounts to a tax on the (potentially wrongly) arrested doesn't mean it isn't a cost.

Unless your county is run by a mafia of bail bondsmen or something, this doesn't turn out to be true.

By default, people who get arrested just stay in jail. If someone is able and willing to pay a bail bondsman, that means they would prefer to lose the bond amount than to remain in jail, which means that they're strictly better off. "Why not just release them of their own recognizance?", you might ask. Courts do that sometimes! We're only talking about the cases where the courts don't do that.

> By default, people who get arrested just stay in jail.

In a money bail system, sure. But artificially creating a worse default doesn't make the relatively better condition good.

Jail as pretrial default is imprisoning the accused, who are presumed innocent, which is a cost (both an economic cost and a liberty cost.)

In a pretrial services model, pretrial detention is exceptional, not default.

People are often released of their own recognizance if the judge is confident that they will show up to court. And sure, maybe they should do that more often. Likewise, some people are straight up denied bail. But there’s a wide gray category of people you don’t necessarily trust to voluntarily show up to court, but who can be incentivized to do so through some mechanism short of just going to jail, and getting rid of that mechanism will just keep those people in jail. So what’s that mechanism? House arrest? Ankle bracelet? Hold one of their close family members hostage? I mean, all of those kind of suck, but if you think any of them might be better, you can offer them as an alternative to bail, and if anyone takes them, more power to them.

> People are often released of their own recognizance if the judge is confident that they will show up to court. And sure, maybe they should do that more often. Likewise, some people are straight up denied bail. But there’s a wide gray category of people you don’t necessarily trust to voluntarily show up to court, but who can be incentivized to do so through some mechanism short of just going to jail, and getting rid of that mechanism will just keep those people in jail. So what’s that mechanism?

The mechanism in the new California law is a pretrial services system similar to the one that has for years been successfully used in Washington, D.C., in place of money bail. It's not just getting rid of a mechanism with no replacement.

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