Alexander Tabarrok linked to his paper with Eric Helland from the Journal of Law and Economics titled The Fugitive: Evidence of Public versus Private Law Enforcement from Bail Jumping the other day and I asked him to email me the PDF, which I just noticed is online, although it might not be the same version.#

I found the introduction and conclusion sections to be the easiest parts to understand because I am not familiar with the technical details of propensity scoring or matching techniques. However, reading the explanations for why certain techniques were used over others is very accessible. I will attempt to highlight what I found most interesting and briefly describe the method, as best I understand it, for the skeptical.#

Introduction#

This thirty page paper deals with the following question: What factors effect whether a defendant for a felony will (a) fail to reappear in court after being released for bail and (b) remain a fugitive for a substantial length of time, over one year in particular. Obviously there are many variables, but this paper focuses on how the bail was paid, rather than the bail level (price) as has been the case in most previous studies. There are a number of methods available: deposit bonds, cash, commercial bail (surety bonds), and release on their own recognizance.#

The dominant forms of release are by surety bond, that is, release on bail that is lent to the accused by a bond dealer, and nonfinancial release. Just over one-quarter of all released defendants are released on surety bond, and a very small percentage pay cash bail or put up their own property with the court (less than 5 percent combined); most of the rest are released on their own recognizance or on some form of public bail (called deposit bond) in which the defendant posts a small fraction, typically 10 percent or less, of the bail amount with the court. [p. 2]

I found the history of the bail system and the powers of private bail bond dealers to be fascinating:#

Although money bail is still the most common form of release, money bail and especially the commercial surety industry have come under increasing and often virulent attack since the 1960s. 7 Bail began as a progressive measure to help defendants get out of jail when the default option was that all defendants would be held until trial. In the twentieth century, however, the default option was more often thought of as release, and thus money bail was reconceived as a factor that kept people in jail. In addition, the greater burden of money bail on the poor elicited growing concern. 8 As a result, significant efforts were made, beginning in the 1960s, to develop alternatives to money bail, and four states—Illinois, Kentucky, Oregon, and Wisconsin— have outlawed commercial bail altogether. [p. 3-4]

On the power of the bounty hunters...

If a defendant does fail to appear, the bond dealer is granted some time, typically 90—180 days, to recapture him before the bond dealer's bond is forfeited. Thus, bond dealers have a credible threat to pursue and rearrest any defendant who flees. Bond dealers report that just to break even, 95 percent of their clients must show up in court. 16 Thus, significant incentives exist to pursue and return skips to justice.

Bond dealers and their agents have powerful legal rights over any defendant who fails to appear, rights that exceed those of the public police. Bail enforcement agents, for example, have the right to break into a defendant's home without a warrant, make arrests using all necessary force including deadly force if needed, temporarily imprison defendants, and pursue and return a defendant across state lines without the necessity of entering into an extradition process. 17 [p. 5]

The authors make the case that the bond dealers have both a great incentive to bring their claims to court and have more power to do so. These factors should result in lower rates of failure to appear and lower fugitive rates.#

The Method#

Of course, I am a bit unsure if I can accurately describe the method, so if this is wrong, tell me, or if you disagree with the results and the method, read the paper for yourself.#

Basically, the idea is to take a large sample of data collect by the U.S. Department of Justice on the conditions being studied and try to identify individuals with similar situations but different "treatments." Here, it seems that "treatment" refers to what method of bail was used.#

Ideally, in a treatment evaluation we would like to identify two outcomes: one if the individual is treated, YT, and one if no treatment is administered, YNT . The effect of the treatment is then YT - YNT. But we cannot observe an individual in both states of the world, making a direct computation [...] impossible. 28 All methods of evaluation, therefore, must make some assumptions about "comparable" individuals. An intuitive method is to match each treated individual with a statistically similar untreated individual and compare differences in outcomes across a series of matches. Thus, two statistical doppelgangers would function as the same individual in different treatments. [p. 7]

After codifying the data and matching each individual with their twin, a propensity score is calculate to codify the effect of each different treatment. Certain tests are made on this data to ensure that there have not been significant errors made:#

Matching is a powerful and flexible tool, but it is not a research design that magically guarantees the identification of causal effects. In this section, we test for robustness and attempt to rule out the potentially confounding effects of unobservable characteristics. We focus on two identification strategies; a number of alternative strategies, described briefly below, are developed in the working paper. [p. 22-23]

This should have provided a delicious appetizer for someone interested in where the results come from.#

Conclusion#

I will quote the short conclusion in full:#

When the default was for every criminal defendant to be held until trial, it was easy to support the institution of surety bail. Surety bail increased the number of releases relative to the default and thereby spared the innocent some jail time. Surety release also provided good, albeit not perfect, assurance that the defendant would later appear to stand trial. When the default is that every defendant is released, or at least when many people believe that "innocent until proven guilty" establishes that release before trial is the ideal, support for the surety bail system becomes more complex. How should the probability of failing to appear and all the costs this implies, including higher crime rates, be traded off against the injustice of imprisoning the innocent or even the injustice of imprisoning the not-yet-proven guilty? We cannot provide an answer to this question, but we can provide a necessary input to this important debate.

Defendants released on surety bond are 28 percent less likely to fail to appear than similar defendants released on their own recognizance, and 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. Requiring defendants to pay their bonds in cash can reduce the FTA rate similar to that for those released on surety bond. Given that a defendant skips town, however, the probability of recapture is much higher for those defendants released on surety bond. As a result, the probability of being a fugitive is 64 percent lower for those released on surety bond compared with those released on cash bond. These finding indicate that bond dealers and bail enforcement agents (bounty hunters) are effective at discouraging flight and at recapturing defendants. Bounty hunters, not public police, appear to be the true long arms of the law. [p. 26]

Further Reading#

Apart from the last sentence of the conclusion, the paper is very free from moralizing or throwing down of the gauntlet with regards to this version of private law enforcement. Outside the paper, however, Prof. Tabarrok has written in this way on the issue.#

Bring on the Bounty Hunters at the site of the Independent Institute:#

It looks impressive when a judge bangs his gavel and orders someone's arrest. Criminals, however, aren't fooled. They know the probability that a warrant will ever be served is minimal.

According to an investigative report by the San Francisco Chronicle, more than 2.5 million arrest warrants are currently outstanding in the State of California. Many of the arrest warrants are for misdemeanors, but thousands of arrest warrants for homicide, kidnapping, sexual assault and other serious crimes also languish unserved.

Local, state and federal law enforcement agencies often don't even try to serve warrants. Instead, they ignore the public's right to safety and simply wait until the suspect is arrested for some other crime. More outrageously, many of these suspects are released on their own recognizance time and time again. As a result, multiple arrest warrants for failure to show up at trial are not uncommon.

At the Marginal Revolution, he wrote about a talk he gave to the California Bail Agents Association.#

Lisa Margonelli mentioned the paper in an article on SFGate.com.#

Prof. Tabarrok has a category here on makeoutcity and has a blog, the Marginal Revolution.#

Alexander Tabarrok, of the Marginal Revolution and George Mason University, writes this paper, Patent Theory versus Patent Law about, you guessed it, how patent theory compares to patent law as it is practiced. Refer to this blog post on how to get the PDF.#

Abstract#

The abstract, verbatim:

According to the economic theory of patents, patents are needed so that pioneer firm have time to recoup their sunk costs of research and development. The key element in the economic theory is that pioneer firms have large, hard to recoup, sunk costs. Yet patents are not awarded on the basis of a firm's sunk costs. Patent law, in fact, ignores costs. The disconnect between patent law and patent theory suggests either that modifying patent law so that it better fits with patent theory would reduce the costs and inefficiencies associated with current patent practice or that the standard economic theory of patents is wrong.

Introduction#

Alexander first explains the economic theory briefly and then puts forth the shape of his argument:

Although the economic theory is well accepted, I argue that it does not fit well with the actual patent system. A patent system designed around the idea of recouping sunk costs would look quite different than the current system. In particular, as I will explain below, the current system ties returns to innovation to the benefits of a patented idea, i.e., as the value of the idea increases monopoly profits increase. Yet the economic theory of patents implies that returns should be tied to the sunk costs of researching and developing the patented idea.

The poor fit between the economic theory of patents and the actual patent system suggests two alternative hypotheses. Either the theory is correct and the patent system is poorly designed, or the patent system is well designed but not for the purposes of recouping sunk costs. Which of the two hypotheses one prefers depends in part upon one's priors about therelativeefficiency of theory versus practice. My primary approach is to assume that the economic theory is correct. Thus, I argue for reforms that would bring the patent system more into accordance with the economic theory.

Theory#

This section explains the theory of patents and briefly mentions that the current patent system is not connected to the economic theory because it ignores the costs that innovates face that imitators do not. Those are sunk costs that the economic theory is concerned with.

An interesting observation of this section is that when a product's value is high, it should not be protected as much as a product whose value is low. This is because since the sunk costs are not related to the benefits, they are repaid easier.

Practice: Examples of Patented Products with Low Innovation to Imitation Costs#

Amazon's "one-click purchasing" is a patent that was granted for something with little to no R&D costs. Another is the discovery of a medical procedure, which by definitions means there were not R&D costs.

Edison famously said that "Genius is one percent inspiration, ninetynine percent perspiration."⁸ A patent system should reward the ninetynine percent perspiration, not the one percent inspiration. In inventing the lightbulb, for example, Edison laboriously experimented with some 3000 possible materials for the filament, before hitting upon carbonized cotton thread (Shulman 1999). If Edison were to patent the lightbulb today he would not need to go to such lengths. Instead, Edison could patent the use of an "electrical resistor for the production of electro-magnetic radiation," a patent that would have covered oven elements as well as lightbulbs.⁹

Proposal#

The key thing that needs to be done is that the sunk costs of an patented product must be integrated into patent policy, somehow. Alexander proposes multiple ways of doing this:

• Changing what products can be patented, preferably by looking at standard innovation/imitation cost ratios in the industry.
• Changing the probability that a patent is granted (or enforced.)
• Changing the length of the patent.
• Changing the breadth of the patent.

An interesting suggestion is to register innovations but not award patents, instead you wait twenty years and estimate how much the innovation was worth and award that with interest. This solves the problem of not being able to estimate correctly the benefits of the innovation before hand.

The "realistic" proposal that does not strive for complete perfection is to allow firms to apply for patents of varying lengths, and as the length increases the scrutiny of the patent office. But, Alexander tries to point out many changes that may not require legislation and would instead modify the discretion of patent examiners and infringement judges.

Objections and Implementation#

"Perhaps the strongest objection against a patent system that takes into account sunk costs is that measuring sunk costs is difficult (Scotchmer 1988).²¹ If the sunk costs are born by the patent applicant then this problem does not seem overly difficult."

And ever the economist:

In order to improve the current system it is not necessary to estimate sunk costs precisely so long as they can be estimated well enough to reasonably assign patent duration to a limited number of categories. If sunk costs justify a patent of 20 years, for example, it's unimportant whether they are two, three or four times greater than necessary. The thrust of this proposal is to make marginal changes in the current patent system rather than to replace that system with something entirely new.

(Note: There's a typo in note 23, "The higher sunk costs are" not "The higher are sunk costs"--I think.)

There is Little to Lose from Patent Reform#

If it were clearly true that on net the patent system increased economic growth and technological advancement then on precautionary grounds alone there would be a good case against reform. But the consensus from many studies of innovation is that most innovations would occur without patents.

Alexander then discusses the proof of this that has been studied and documented by others. He also cites in the footnotes someone, Cohen et al. (2000), who found that "much patenting is simply generated by the patent system itself as firms patent in order to protect themselves from the patenting of other firms."

But, Tabarrok recommends merely weak patents in cases where there are not useful, because they are useful in some instances. He is not completely against patents for any ideological reason.

Other Theories of Patents#

In this section he addresses the concern that perhaps the economic theory of patents is wrong and that either another theory is necessary, whether it is another defined one (e.g. the disclosure theory) or a theory implicit in the current patent system.

Conclusion#

Another brief summary like the abstract.

And here, I will leave myself a note to compare this paper with François-René Rideau's discussion of patents in Patents Are An Economic Absurdity, when I get a change to read it.#