Statutes Should Embrace the Concept of Nuisance Bail and Recognize the Role of Financial Incentives


The reason bail works as security is not just that people tend to show up when they have a financial incentive—instead, it is the availability of a cure when a third-party indemnitor has an incentive to return a defendant who failed to show up for court or when the person has become too great of a risk to be at large (for example, they begin to commit additional crimes or they continue using illegal substances).

Third parties and defendants are typically not incentivized to do much of anything by low bails. A bail recovery agent may return someone on $100 bail, but typically nothing but informal resolution may occur for that low of an incentive. The defendants themselves perceived that they bought their way out of jail, because they know the state will ultimately keep their $100 anyway, thus killing the incentive for attendance in court. While indigent parties do in fact need consideration and lowering of bonds or not having bonds imposed as necessary and within the discretion of judges, and perhaps there may be cases where low bails could occur, instead, jurisdictions should embrace the concept of looking at cases where the bail is merely a nuisance bail, used for collections or some other purpose that does not square with the purposes and intent of bail, rather than actually providing a true incentive to return someone to court.

Jurisdictions need to instead focus on those cases where the person has committed additional crimes while on bail or has failed to appear, and then impose more meaningful bails in such cases while attempting to eliminate some bails in low-level nuisance bail situations. In addition, if classes of identifiable cases are going to get release on recognizance, re-visit the necessity of arresting all of that class of identifiable persons.

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4th Generation of Bail Reform

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The 4th Generation of Bail Reform Thirty four years after the federal government embarked on this grand risk-based bail experiment, an experiment which no one thought constitutional at the time, it is now time instead for a fourth generation of bail reform. One that returns the American bail system into what it is supposed to be. A bail bond which is solely based on the defendant’s appearance in which judges set appropriate bail that balances the rights of the victim of crime, the person accused of the crime, and the people who seek to prosecute the accused.5.22 MB11-21-2018 DownloadPreview