The Fugitive Evidence on Public versus Private Law Enforcement from Bail Jumping

1. The FugitiveEvidence on Public versus Private Law Enforcement from Bail Jumping Eric Helland and Alexander Tabarrok

2. Introduction • Most felony defendants are released before trial. • One quarter of all released felony defendants, some 200,000 a year, fail to appear at trial. • About 60,000 felony defendants a year skip town and disappear for a year or more. • Defendants who fail to appear impose significant costs on others.

3. Types of Pretrial Release • Own recognizance • Surety bond • Cash Bond • Public bail (called deposit bond) • We consider each form of release to be a “treatment” and evaluate the effect of each treatment on the failure to appear rate, the time to recapture and the fugitive rate.

4. The Attack on the Commercial Bail System “Bail bondsmen are a cancer on the body of criminal justice.” Judge William Snouffer “The commercial bail system is ‘offensive’ and ‘odorous.’” Supreme Court Justice Harry Blackmun The American Bar Association says “the commercial bond business has been one of the most tawdry parts of the criminal justice system.” And the ABA suggests that "The central evil of the compensated surety system is that it generally delegates public tasks to largely unregulated private individuals.” American Bar Association, emphasis added. “The present system of commercial surety bail should be simply and totally abolished….It is not so much that bondsmen are evil – although they sometimes are – but rather that they serve no useful purpose.” U.C. Davis law Professor, Floyd Feeney

5. Arguments Against Commercial Bail • Unlike cash bond the fee for a surety bond is sunk, for this reason it's often asserted that the commercial bail system discourages appearance. • Supreme Court Justice William O. Douglas argued that the commercial bail system fails "to provide an incentive to the defendant to comply with the terms of the bond.“ • Drimmer (1996, 742), says "hiring a commercial bondsman removes the incentive for the defendant to appear at trial."

6. Incentives to Appear • The arguments misses the role of other incentives. • Lenders generally create incentives to encourage repayment • Collateral on loans • Lenders create a “circle of responsibility” people who have the same incentive as the bondsman to get the defendant to court. E.g. cosigning by family members. • Bond dealers will also monitor their charges and require them to check in periodically. • Thus it is an open question how these incentives compare to the incentives under other systems.

7. Incentives for Recapture • The “treatments” differ especially in how they respond to those who abscond. • Under own recognizance, deposit bond or cash release the defendant who skips town is pursued by the police. • But if you are released on commercial bail you are pursued by…

9. Bounty Hunters • If you are released on commercial bail you are pursued by the surety and his or her agents, “bounty hunters.” • If the defendant is not returned within a short period of time (typically 90-180 days), then the bail bondsman forfeits the bond. • Bail bonding is competitive-95% of clients must show up to turn a profit. • Bail bondsman has strong incentives to track down skips. • In some ways bounty hunters have greater powers than the police because legally the bail bond agent stands in for the jailer and thus inherits the rights of the jailer.

10. Bounty Hunters versus the Police • Public police bureaus are often strained for resources and the rearrest of defendants who FTA is low priority. • The flow of arrest warrants for failure to appear has overwhelmed many police departments so that today many counties are faced with a massive stock of unserved arrest warrants. • California has the largest backlog of arrest warrants in the nation. The California Department of Corrections estimated that as of December 1998 there were more than two and a half million unserved arrest warrants including 2,600 outstanding homicide warrants. • Howe and Hallissy (1999) report that "local, state and federal law enforcement agencies have largely abandoned their job of serving warrants in all but the most serious cases."

11. The Data • The data is a random sample of felony filings from approximately 40 jurisdictions designed to represent the 75 most populous U.S. counties. • The data covers 58,585 felony defendants from 1988, 1990, 1992, 1994, 1996 • The data contains detailed information on: • arrest charges • the criminal background of the defendant • sex and age of the defendant • release type (surety, cash bond, own recognizance etc.) • rearrest charges for those rearrested • whether the defendant failed to appear and if so whether the defendant was still at large after one year

13. In Search of Schrödinger's Defendant • One reason for lower FTA rates may simply be selection. Bail - bondsmen "cream-skim" for those least likely to FTA. • Consider the simplest case where i denotes a particular individual and there are two treatments. The treatment effect is - and the average treatment effect • but we only ever observe (treated) or (untreated). • Necessity of finding “comparables.” • Random assignment • Weaker assumption is that treatment assignment is random conditional on some Xi • This suggests an intuitive estimator – match individuals across the conditioning variable.

14. Matching on Propensity Score • The matching method will quickly run into a problem because as we expand the number of matching variables the number of matching categories expands exponentially. • Rosenbaum and Rubin showed how this problem could be overcome. What they showed is that if treatment is independent of outcome conditional on X • then it is also true that: • where p(X) is the probability that T=1 | X also called the propensity score. • Rosenbaum and Rubin showed that you could shrink the multi-dimensional problem of matching on many categories into a single dimensional problem of matching on the probability of treatment.

15. Intuition on Propensity Score Matching • We would like to have random assignment which means that the X would be distributed identically across the two treatments. • What matching on the propensity score does is to rebalance the sample so that X is balanced across the treatments and thus we recreate a sample that looks as if it were drawn randomly. • The matching technique extends naturally to applications with multiple treatments through the use of a multi-valued propensity score with matching on conditional probabilities (Lechner1999, Imbrens 1999).

17. Generating P-Scores • We use an ordered probit model which includes the crime the defendant is alleged to have committed, whether the defendant had previous experience with the criminal justice system including whether the defenant had failed to appear in the past. Note that these are the sorts of variables that judges used to make their treatment assignments. • Idea is that we will create an as if “random sample” based on these characteristics for each treatment group. • We then match individuals across the treatment groups according to their p-scores using a caliper of .0001.

19. Estimated Treatment Effects: The Fugitive • Not every failure to appear is the result of an attempt to escape justice. • In some cases, a defendant fails to appear because he forgets his trial date, gets sick, or is already in jail. • A telephone call usually resolves these issues and the defendant is back on trial within a couple of weeks. • Commercial bail is most different from other release types including pretrial release bureaucracies in tracking down defendants who have purposively skipped town. • Recapture of purposeful skips is where we would expect to see the largest effects from surety release. • Once a defendant has absconded, the efforts of the bail bondsman relative to the police are what determines differences in results.

23. Kaplan-Meier Estimation of FTA duration • We estimate a Kaplan-Meier model of the duration of an FTA spell. • The analysis is conducted on days at large and is truncated at one year. • The Kaplan-Meier estimator is a non-parametric estimate of the survivor function: the probability that an individual survives in the current state. Note, however, that we compare matched samples so our KM estimator controls for covariates even though it is non-parametric.

24. Estimation of Time to Recapture

25. Looking for Unobservables • 6 robustness tests in the main paper controlling for a variety of fixed effects, information observed by judge but not the econometrician, as well as general unobserved factors. • Results are consistent across a wide variety of specifications.

26. A “Twins” Study • We look at individuals who were released on their own recognizance the first time they got arrested and who were then arrested again. • We then compare the fugitive rates on the first charge for those who got own-own with those who got own-surety. • The reasoning here is that if the bond dealers make the defendant stick around for the second charge then this creates a unintended benefit on the first charge – the defendant can't skip town on one charge but not the other. • At the same time we are comparing individuals both of whom were released on their own recognizance – thus who should be especially comparable.

28. Bounties for Justice: New Directions • The success of the commercial bail system suggest that we ought to look for other areas to apply the bounty concept. • Privatization of Warrant Service • Recall that there are 2.5 million unservered arrest warrants in CA – many for serious charges. • Put a bounty on serving these warrants. • Parole Bonds • FTAs and Fugitives are common for parolees and probationiers just as for felony defendants. Some 10% of probationiers have absconded. • Probation and parole officiers are strained and understaffed. • Felony defendants can be required to pay bail to be released. Why not require probationiers and parolee’s to pay parole bond?

29. Summary of Results • Defendants released on surety bond are 28 percent less likely to fail to appear than similar defendants released on their own recognizance. • If they do fail to appear, they are 53 percent less likely to remain at large for extended periods of time. • Deposit bonds perform only marginally better than release on own recognizance.

30. Requiring defendants to pay their bonds in cash can reduce the FTA rate but conditional on FTA the fugitive rate is much lower on surety bond. • Given that a defendant skips town the probability of recapture is much higher for those defendants on surety bond. • The bounty concept ought to be extended to privatized warrant service and probation and parole bonds.