The Collapse of Justice

Code Name Insight was wondering about the recent surge in violence.

Well if you can remember the early 1990s there had been an earlier collapse into violence and the fear of a future of super predator lurking was very real.  But then the fear tapered off, and the violence receded, and you started having papers say things like

Researchers will debate for years why violent crime in the United States increased sharply in the 1980s and early 1990s before dropping just as precipitously in the mid- to late-1990s.  Jeffrey Butts and Jeremy Travis, The Rise and Fall of American Youth Violence 1980 to 2000.

Well I have my own theory.  I don’t pretend that it will answer all the questions, but I think it is a place to start.  IMO the signal event that heralded the end was the election of Bill Clinton.  Now it would be pretty easy to see where the peace and prosperity of this time period would lead to less violence and peace on the home front.  But I think that there was another factor:  criminal became afraid of being caught, and when they were caught they spent a lot of time in jail.

The civil rights movement was a net huge positive for bringing our country out of a dark age.  However, the movement had also exposed our criminal justice system as often being a very arbitrary and unevenly enforced system depending on who and where you were.  Numerous defendant rights were initiated.  While these rights did much for individual liberty, they did make the police’s job more difficult.  If you had some unsolved mystery, it was more difficult to just drive down the street and throw some random criminal type in jail to beat or forge a confession.  Granted the random criminal type may not have been the one who committed the crime, but provided they were within the active criminal community the result might still be a net positive.  You had a criminal in jail.

Well that works well for a police state, but is not so good for a free democracy.  The problem is that the cleaning up of the system became a political talking point.  The Democrats with their association with civil rights and anti-discrimination, and then with the civil unrest of the late 1960s, began to view law enforcement as a negative.  Much like pollution or “global warming” has become a bench mark for where you stand politically, rather than a problem to be addressed, law enforcement was much the same way.  Since they were in charge through much of the 1970s, they went to great lengths to reduce the capabilities of the criminal justice system.  Rather than go through the usual list of changes, let us take a look at one that is less known:  commercial bail bonds.

Bail was widely admired as a progressive institution when the alternative was jail, but in the 1950s and ’60s many judges and law professors began to think that the alternative to bail should be release on a defendant’s own recognizance. Bail looked increasingly like a conservative institution that kept people, especially poor people, in jail. Many opinion makers came to support the creation of pretrial services agencies that would investigate defendants and recommend to judges whether they could be safely released on their own recognizance. In essence, the agencies would replace the judgment of bail bondsmen with the judgment of a professional bureaucracy.

In the early 1960s, the Vera Institute of Justice’s Manhattan Bail Project in New York City began gathering information about local defendants’ community ties and residential and employment stability and summarizing it in a numerical scoring system that it used to identify those who could be recommended for release on their own recognizance. The experiment was successful. The failure-to-appear rate among felony defendants the project recommended for release was no higher than the rate among those released on bail. Largely on the basis of these results, President Lyndon B. Johnson signed the Federal Bail Reform Act of 1966, which created a presumption in favor of releasing defendants on their own recognizance.

Although the new law applied only to the federal courts, the states have widely emulated the reforms. Every state now has some kind of pretrial services program, and four (Illinois, Kentucky, Oregon, and Wisconsin) have outlawed commercial bail altogether. In its place, Illinois introduced the government bail or “deposit bond” system. The defendant is required to deposit with the court a small percentage of the face value of the bond. If the defendant fails to appear, he may lose the deposit and be held liable for the full value of the bond. But while a defendant in a commercial bail system who shows up in court must still pay the bondsman a fee, those who do so in jurisdictions with systems like Illinois’s get all their money back (less a small service fee in some cases). And the only people empowered to chase down a defendant who has fled are the police.

The results of the Manhattan Bail Project seemed to support the position of progressives who argued that commercial bail was unnecessary. But all that the findings really demonstrated was that a few carefully selected felony defendants could be safely released on their own recognizance. In reality, the project allowed relatively few defendants to be let go and so could easily cherry pick those who were most likely to appear at trial. As pretrial release programs expanded in the late 1960s and early ’70s, failure-to-appear rates increased.

Today, when a defendant fails to appear, an arrest warrant is issued. But if the defendant was released on his own recognizance or on government bail, very little else happens. In many states and cities, the police are overwhelmed with outstanding arrest warrants. In California, about two million warrants have gone unserved. Many are for minor offenses, but hundreds of thousands are for felonies, including thousands of homicides.

In Philadelphia, where commercial bail has been regulated out of existence, The Philadelphia Inquirer recently found that “fugitives jump bail . . . with virtual impunity.” At the end of 2009, the City of Brotherly Love had more than 47,000 unserved arrest warrants. About the only time the city’s bail jumpers are recaptured is when they are arrested for some other crime. One would expect that a criminal on the lam would be careful not to get caught speeding, but foresight is rarely a prominent characteristic of bail jumpers. Routine stops ensnare more than a few of them. When the jails are crowded, however, even serial bail jumpers are often released.

The backlog of unserved warrants has become so bad that Philadelphia and many other cities with similar systems, including Washington, D.C., Indianapolis, and Phoenix, have held “safe surrender” days when fugitives are promised leniency if they turn themselves in at a local church or other neutral location. (Some safe surrender programs even advertise on-site child care.) That’s good for the fugitives, but for victims of crime, both past and future, justice delayed is justice denied.

Unserved warrants tend not to pile up in jurisdictions with commercial bondsmen. In those places, the bail bond agent is on the hook for the bond and thus has a strong incentive to bring those who jump bail to justice. My interest in commercial bail and bounty hunting began when economist Eric Helland and I used data on 36,231 felony defendants released between 1988 and 1996 to investigate the differences between the public and private systems of bail and fugitive recovery. Our study, published in TheJournal of Law and Economics in 2004, is the largest and most comprehensive ever written on the bail system. From Alex Tabarrok, The Bounty Hunter’s Pursuit of Justice, The Wilson Quarterly, Winter 2011.

Similar events have happened in other countries.  When spoke about the problems of kidnapping in Mexico, we noted that of their reported crimes 98% go unpunished.   Latin America appears to go to its culture of low policing through land reform in the 1950s.  It is also an obvious, but not necessary (see Lenin-Stalin) outgrowth of their left coming from underground anarchist-communist movements.  They have had more ups and downs with some very extreme police states in the 1970s, but in general their left also had an association with justice for the disposed versus law enforcement.

So where does Bill Clinton fit into the picture.  Well Bill Clinton did not want to be the next Michael Dukakis making excuses for Willie Horton.  So he got tough on crime with truth in sentencing provisions, he greatly increased the number of crimes that would get the death penalty.  In a sense he started the turnaround away from lax provisions.  He turned the Democrats away from their history of knee jerk civil rights advocates.

Of course there is mixed blessings to this “message” if true.  It means that there was likely a onetime reset to a new baseline.  It took a few years to get to that new baseline, but once you are there any improvements will be very much on the margins, and many of the system improvements are more likely to cause a fall-back then improvement.