Thursday, October 19, 2017

The New Mexico Governor and Bail Reform

I like when Governors get involved with bail reform. I really do. But with the New Mexico Governor's entry into the world of bail reform calling for the repeal of the constitutional bail amendment through her Facebook account, I have four quick things to say.

First, she was for the New Mexico constitutional amendment in September before the election. Given that it passed with 87% of the vote, I'll bet she even voted for it.  Before the election, the bail insurance companies even called it a "historic" compromise. Then they realized that the New Mexico Supreme Court had the ability to radically diminish the use of money at bail. They had serious buyer's remorse when they learned they couldn't just lobby the legislature to keep themselves in business, and I guess they managed to spread that to the Governor.

Second, I don't like when bail reform gets political, because it doesn't need to. But by using the phrase "repeal and replacement" -- perhaps the most political phrase of the 21st Century -- along with faulting judges for "return[ing] criminals back to our neighborhoods" as well as repeating he woefully tired phrase "catch and release," she has obviously bought into the bail industry's political rhetoric of trying to show that any attempt at bail reform is an Obama-era program that somehow hurts public safety (the last desperate cry of defenders of the status quo). Just remember, the bail insurance companies don't care about public safety -- up until the amendment, they were quite happy helping to release any and all dangerous defendants in New Mexico so long as they had some money. Bottom line: Bail reform isn't political if you actually know what bail reform is.

Third, the substance of this issue shows just how little the Governor actually understands. The case she cites, William Wilson, could have been detained under the constitutional amendment. So there's nothing wrong with the amendment in that case.  In the old days, some judge would have given William a money bond, and William would have been out on the streets anyway because a Supreme Court opinion said New Mexico judges couldn't use money to detain. Money won't keep anyone safe, so the constitutional amendment allows judges to detain, without money, dangerous defendants, just like the Governor wanted. And there's nothing you could add to the constitution to do any more than just allow judges the opportunity to detain someone. Laws that have that made persons automatically definable for various reasons have always been struck as unconstitutional. Even rebuttable presumptions have to be rebuttable.

So if the constitutional amendment did what it was supposed to do -- i.e., allow a judge to detain William -- why wasn't he detained? Well, it could be because of the court rules (which is ABC's beef), but if that's the case, then I suppose that's just tough. In New Mexico, the Supreme Court's rules govern bail, and the legislature can't change them. I suppose that's why she says she wants to repeal and replace the constitutional amendment; the bail insurance companies finally figured out that the amendment wasn't the best thing for their industry after all, and going back to change the constitution is really the only way they can undo it.

But the fact that William wasn't detained could also be due to the fact that no matter what we do, we simply cannot predict individual defendant behavior. Indeed, the more serious and violent crime gets, the less able we are to predict it. We couldn't predict it in the money bail system either, but at least this way New Mexico gets at least a shot at detention for certain "dangerous" defendants.

I imagine if you look hard at the case she cites, you'll see that the judge did the absolute best he or she could do to balance individual freedom with public safety and court appearance. William could've been detained, but something in the case -- including the inability to predict individual risk under any bail system -- obviously led to his release.

So, Governor, respectfully: (1) the amendment isn't really your problem based on what you're saying (it's someone else' problem, but I'll let you figure that out on your own); (2) don't politicize bail reform -- leave that to the insurance companies who don't care one bit about New Mexico residents; and (3) look into the issues before you take a stand on something. If you'd have looked into the constitutional amendment before you said you were for it, you would've not only seen this coming, you would've actually understood why it was inevitable.

Oh, and (4): On Facebook? Really?

Thursday, October 12, 2017

American Bail Agent Coalition Part II

One thing I like about Facebook is that if you get up before the guy operating some Facebook page, you can read the comments to a post before they get deleted. I read the comments on the post announcing ABC's upcoming agent conference (they're gone now), and there were a bunch of them, mostly in three categories: (1) I have to choose between yours and and the one by PBUS; (2) you didn't give me enough time (it's only a month away); and (3) how can I know what to do if you don't have an agenda?

So this thing looks a lot like last year, which I wrote about here. Mostly chaotic.

ABC will likely do the same thing this year by trying to convince you that everything is turning around, and that you need to keep fighting everyone. But really, do you think things got better for the for-profit bail industry in America last year? Plus, they'll leave a lot out. For example, they might tell you that they talked DOJ into stopping any funding for pretrial stuff, but guess what? We replaced all that money and a lot more with both conservative and liberal private donors.

By the way, I also followed a link provided by ABC to the "AGENT ONLY Private Page on Facebook" for the ABAC, and guess what? It wasn't exactly private, and there's a whole bunch of people listed as members who are insurance-only people. ABC's afraid of a truly "agent only" page, so it's characteristic of ABC that it would say it's "agent only" when it really isn't.

The conference, the new agent group, the strategy, and even the Facebook pages are what I've come to expect from ABC. Just remember, bail agents, because the solution to the issue of bail in America doesn't involve insurance companies, those companies will fight everyone and everything that represents any change to the status quo. But states don't want the status quo. And until ABC can provide an answer to states who truly want something different, they'll fight the states, turn them against commercial bail, and take you all down with it. 

Tuesday, October 10, 2017

The American Bail Agent Coalition?

Yep, that’s right. ABC is starting the American Bail Agent Coalition. Remember when I wrote about the new communications guy they hired? Well, this same guy’s job description is also to try to build a bridge between agents and the insurance companies. And for that reason, you should really look at this thing with some hefty skepticism. Because he’s not really a bail agent anymore – he’s now on the insurance payroll.

I’ve been telling agents for years that the insurance companies aren’t doing their agents any favors. And think about it – they never have. Over the decades these companies have made sure agents take all the risk and cover all the losses. As I’ve often said, it’s like the mafia, with agents dropping bags of money on the porches of the insurance companies. The insurance companies are now spending all that agent-earned money to fight everything, because when a company makes money for doing literally nothing, any change to the status quo means losing money (and that money probably isn’t just sitting in a pile waiting to be used; it’s probably going to some pretty cushy insurance executive salaries). But, really, what has all the fighting gotten you so far?  

I’ve checked out the ABAC Facebook page, and you really don’t have to bother. The same guy running the US Bail Reform page is obviously doing this one and ABC’s, and so it’s got all the same posts. Mostly it has the usual – “Look at this dangerous guy RELEASED ON A PINKY PROMISE!” stories.

It’s also got a funny picture that repeats the words “public safety” over and over. Really, the inherent lack of concern over public safety is the one thing doing the most damage to your industry, and saying the words “public safety” over and over won’t change that. Once people look into it and see that you can’t forfeit money for new crimes, they quickly see that whatever the industry says about public safety is disingenuous. ABC, PBUS, ABAC, and all the people behind those other bogus websites and pages out there would gladly release that really dangerous guy if he only had a few hundred bucks, and so it’s clear that the bail industry and public safety aren’t even really a thing. No wonder the ABAC page has to repeat it so much – even it doesn’t believe it.  

Look, the guy that ABC hired used to be an agent, but now he’s an insurance guy being paid insurance money to convince you to agree to the insurance company strategy. And don’t be fooled. PBUS isn’t here for the individual agent, either. If it were, it would’ve figured out a long time ago how to keep from sending the insurance companies all that money so that they can do absolutely nothing. And it would’ve pretty quickly seen that fighting literally everyone on every single issue will only come back to bite you. PBUS may not be “all bail insurance, all the time,” but it’s infested with insurance dudes and it has the bail insurance mentality. I don’t see that changing without some really serious adjustments at the top. 

But now, aligned as they may be, it’s clear that ABC has grown weary of the really whacked out strategy of PBUS, which has brought in some pretty nutty people and super-weird ideas (suing on products liability?). But ABC’s really no better, and it’s all the uninformed fighting that both groups do that will ultimately kill the industry in any event. That’s because neither ABC nor PBUS has any strategy that doesn’t involve fighting to the death. In short, they have no solution for the states. We do.  

Bail agents, I know I said I gave up on you, but I feel compelled to advise you at least one more time. So just remember that there’s no future for bail insurance companies in American pretrial release and detention. There’s no need, because even if we keep money, those really big numbers are going away. The sooner you cut those companies loose and work on your own strategy, the longer you’ll stay in business. Hey, it won’t be easy, but don’t tell me it’s impossible. If you think so, you’ve just been listening to the bail insurance companies too much.  

Tuesday, October 3, 2017

Bail Industry: "Money Bail Only For Felonies?"

Here's a great article summarizing the current bail reform movement, titled, "The Fight to Fix America's Broken Bail System." I have to say there's a bit of vindication in hearing people call it "broken." It wasn't that long ago that I had to listen to goofballs in my own county saying, "If it ain't broke, don't fix it." Wogga muk gubba pum wup!

In the article, ABC says it just wants to preserve money bail in felony cases, saying, "The key core of our business is high risk felony cases. That's where judges should use us."

The author of the article says that the statement is "belied" by the bail industry's actions, and I agree. After all, the bail insurance companies are fighting like crazy to keep money bail in all cases, not just felonies. The federal lawsuit in Harris County only deals with misdemeanors, and the insurance companies have spent more of the bail agents' money on that case than in any to date.

So why make such a blatantly false statement? I have no answer except that the industry has been making any and all statements and arguments lately just to see what sticks. They say bail should be left to the legislatures, and then they bring their own legal claims to court (by the way, the industry has been using the courts to get its way for decades; it just doesn't like it when things go the opposite direction). They say the constitutional amendment in New Mexico is some great compromise between the industry and the state, and then they sue the state. They say there are no people in jail due to lack of money, then they say that it's time they admit that there are. In a federal trial court they say people are in jail because they want to be in jail, and then later in the same case they say those people are too dangerous to release. Now they say they only want money bail for felonies, but they fight like crazy to keep it in all cases. Makes your head spin.

This is a sign of an industry that either doesn't understand what it wants, or that's simply desperate to find the one argument that miraculously lets everything just stay the same -- preferably with them making gobs of money without doing anything. Then again, I've said before that ABC doesn't even know what the term "bail" means, so the whole thing might just be incompetence.

Really, the bail insurance "strategy" is just a confused mess, with ABC and PBUS flailing with schizophrenic arguments, groundless lawsuits, worthless PR campaigns, and bogus Facebook posts. Meanwhile, justice officials are quickly recognizing that the bail industry is simply in the way.

No wonder California has decided to look into whether there's some basic flaws in the bail insurance model with an eye toward regulation. Oh wait, that's a different blog!

Wednesday, September 27, 2017

The Heritage Foundation’s Horrible History of Bail

The bail insurance companies – oops, I mean the Heritage Foundation – has issued its “History of Cash Bail,” and man, it’s atrocious. It’s rife with flaws, misunderstandings concerning the history and the law, and misleading statements designed to persuade others to retain the status quo and the money bail system. I wrote up about 20 pages on it in only about three hours, which I’m sending to the world, but let me just mention four big errors.

The title, “The History of Cash Bail,” is incredibly misleading. “Cash bail,” as we are all using it today, is a shorthand way to describe secured financial conditions, and those conditions were only used in America starting in about the 1800s. But because the bail reform movement has used the term “cash bail” as a shorthand reference to describe secured financial conditions, the Heritage Foundation, in an argument to keep the status quo, misleads people by trying to argue that “cash bail” or “money bail” has been around forever. This is precisely the bail insurance stand on this, but, unfortunately, both the bail insurance companies and Heritage are disastrously wrong. Under the personal surety system used in both England and America until the 1800s, personal sureties watched over defendants using what we would call today “unsecured bonds,” which involved a system of recognizances requiring people to promise to pay amounts only in the event of default. The sureties could not profit or be indemnified, so money only rarely stood in the way of release (when it did, it was usually considered an abuse). “Secured” financial conditions – requiring something to be paid up front – started in the early to mid-1800s and began to flourish only with the rise of commercial bail bondsmen. Really, until the 1900s, no historian ever called bail “cash bail” or “money bail” when creating a history document, likely because the history of those things would be quite short. And historical accounts of "money bail" in the 1900s (and even the 1800s, such as with De Tocqueville) are uniformly critical. This error permeates the entire Heritage document.

The abstract is also wrong when it says that bail reformers are "seeking to erase the Bail Clause from the Bill of Rights." Again, the bail industry likes people to believe that bail equals money, so that they can argue the elimination of money means the erosion of the right to bail. Well, bail is not money; it's a process of conditional release, and everyone who has looked at the history of bail comes to the same conclusion. Moreover, to the extent that bail reformers are using the courts, they are merely trying to get them to apply other constitutional protections -- such as due process and equal protection -- to a fundamentally unfair money bail system. Heritage merely repeats the main bail insurance company claim that all bail matters must be decided under the Eighth Amendment to avoid talking about fairness. 

The key points are also seriously flawed. I’ll just give one example: Key point number one says a fundamental purpose of bail is to “guarantee” appearance. No lawyer would ever say that, as the Supreme Court has made it clear that “reasonable assurance,” and not complete assurance, is all we can expect from any condition of release. Maybe it’s okay to misstate the law in bail. Oh, wait, no it’s not.

The Conclusion makes an unforgivable error. In the conclusion, Heritage mentions a balance between release and “the need of society to protect against flight and ensure punishment.” The balance, actually, is between release, court appearance, and public safety during the pretrial phase of the case. Saying that the balance includes ensuring punishment is so wrong and monstrously ridiculous that it has never been articulated in that way before. There is simply no basis for saying that bail has anything to do with punishment – indeed, bail designed to punish or to otherwise make it easier to punish (such as by imposing money as a "penalty" for the charge or to coerce a plea) is clearly unconstitutional. This one line shows a complete misunderstanding not only of bail, but of the entire American criminal justice system, and the document should be discarded on that basis alone. In fact, I’m going to go out on a limb here and say that the Heritage Foundation will likely change their conclusion to not mention punishment, or will re-phrase the whole thing to avoid the constitutional error. You just watch.

In between these things, I enumerate roughly thirty mostly big-time errors, which are explained in the twenty page document.  

In my original history document for PJI, I mentioned a video in which a bail insurance guy said he wrote up some sort of research sheet on pretrial services agencies, but that he got ALEC (the bad) to put its name on it because “we didn’t want it to look like it came from a bail bonding organization – we wanted it to look like it came from some neutral, political source.” Recently, one of the bail industry’s flunkies also wrote a history of bail piece, which I blogged about here.  Now, I’m not saying that Heritage just stamped their name on a bail insurance company document, but if it didn’t, then it should say it did, because this thing is so wrong and misleading it would actually be better for the Heritage Foundation to keep its distance from it. Nevertheless, this document certainly looks like an ABC document; it's claims are uncannily similar -- if not identical -- to the claims made by the bail insurance companies in this generation of reform. Indeed, one of the main premises of the Heritage history, that bail issues should be decided by legislatures and not courts, favors the for-profit bail industry for the simple reason that bail insurance companies have had decades of experience giving money to lawmakers to obtain favorable legislation.  

If you want to read about the history of bail, start with my Fundamentals paper and the citations therein, then read my Money paper, and then read my Model Bail Laws paper, which shows how the history can inform re-drawing the line between release and detention (none of which are cited by Heritage). Or, really, read literally anything else besides the Heritage Foundation's History of Cash Bail. 

This is serious. Just recently, two inmates in two separate jails in Colorado died while being "held on bail," meaning a money amount was set, but it likely unlawfully kept them from obtaining release. Heritage is essentially using a misleading history to maintain the status quo, but the status quo is frequently tragic. Indeed, a proper history of bail shows just how tragic "cash bail" really is.

To the authors: Look, I'm sure you guys are nice and smart and really mean well, but you need to watch who you jump in with. I've seen many smart and talented people fall under the spell of the bail insurance companies (often for what I call "bail fame"), but those companies will mislead you, use you up, and toss you aside. It already happened to the last guy who wrote a history for them. A fine organization like the Heritage Foundation should be careful not to be on the wrong side of history. There is a conservative viewpoint on all this, and it mostly surrounds the crucial issue of how large pretrial detention should be in a moneyless system. Don't get sidetracked with a dying industry. That is, unless you did this thing yourselves. If so, you're on your own.  

Saturday, September 23, 2017

Bail Industry Loses Hard in New Jersey -- Not Even Close

ABC praises the fact that the federal court in New Jersey found that the plaintiff had standing to sue over bail reform! Woo Hoo! Standing!

All that means is that the person suing is the person who can sue. It's a jurisdictional matter that is so fundamental that most lawyers -- but apparently not ABC's -- make sure they have it before they ever go near the courthouse. The fact that it even came up and seems like it's going to eventually exclude Lexington National means that these lawyers need a nice refresher course on federal jurisdiction.

When it comes to a motion for preliminary injunction, there are four factors that the court balances. I won't bore you all of them because the industry failed to show any of them. Like none. Just like in New Mexico. Zero. Zip.

I will, however, focus a second on the factor that says the party seeking to get the injunction has to show "likelihood of success on the merits." This is the big one, because it gives us a glimpse of the actual legal arguments and how they might eventually stand up if, in fact, the case ever goes to trial.

But as you may have surmised by now, the bail industry didn't show likelihood of success on any legal claim. The Judge wrote: "In summary, neither Holland nor Lexington has shown likelihood of success on the merits of their Eighth Amendment, Fourteenth Amendment, and Fourth Amendment claims. Neither plaintiff has made a showing of a reasonable probability of eventual success on any claim examined above." 

That gives you a pretty good idea of how things will go if this thing ever gets to trial.

Let me quote from the judge: "Finally, if these considerations were a close call -- which the Court does not find them to be -- then the balance would even further tip in favor of denying the injunction because of doubts about Lexington's standing and the arguments favoring Younger abstention."

Bail industry likely to succeed on the merits? Nope. Not even close.

Wednesday, September 20, 2017

What a Difference Five Years Makes!

Back in 2012, the bail insurance companies released a "PR Web" article saying, "Judges Confirm That Bail Bond Agents Play an Important Role in the Criminal Justice System." You see, some bail insurance dudes apparently went to the American Judges Association Conference that year, conducted a "survey," and concluded that 90% of judges say bail agents play an important role. The article is fascinating, as the insurance dude describes handing out his unbiased survey along with several hundred "I Love My Judge" buttons. I think that's how Pew does it, right?

Oh well, cut to 2017, and you can read the new American Judge's Association Resolution Number 2, in which the association urges judges to, among other things, "call for the elimination of commercially secured bonds at any time during the pretrial phase."


So, I think the lesson is twofold. First, the ABC/PBUS strategy of fighting everything is really backfiring. Second, don't necessarily believe what you read from the bail insurance dudes.