Monday, April 24, 2017

The Anecdotes Fall Apart Quicky

The bail insurance companies think they're fooling people with anecdotal stories about "failures" surrounding bail reform in New Jersey. They're not. Just check out this opinion piece posted in that state yesterday.

In fact, they don't even realize that past iterations of bail insurance company lobbyists already tried the anecdotal route and failed.

When I first got started in bail reform, and when all we had fighting us were a few unripened district attorneys in short pants and, of course, national bail insurance company lobbyists, they only used anecdotes. That was their main strategy, and it worked horribly. Look at where we are now.

As the opinion piece says, "What we don't want . . . is a political mad dash to change this reform, based on anecdotes."

I know it's tempting to use anecdotes. It's sort of human nature. But realize this. Even if you do, the laws, policies, and practices that you create based on anecdotes simply won't hold up legally. If I'm an appellate court, and I'm trying to gauge a legislature's justification for a new bail law, it's not going to fly for that legislature to say, "Well, we had this one particular guy who sawed off his GPS and . . . "

So, the strategy of the bail insurance companies appears to be "fight everything," even if it kills their own bail agents, and "use anecdotal scary stories to try to fool people while you fight," even if that didn't work ten years before and even if it'll lead to laws being struck in the future.

I don't know, bail agents, seems like these guys haven't learned anything in ten years. Maybe it's time for a change.

Friday, April 21, 2017

“Colorado Model” Isn’t Working So Well?


Man, those bail insurance companies will lie about anything, and especially about Colorado. It’s a long story, but they really hate Colorado for three big reasons, and it’s so juvenile that it would remind you of grade school recess if I explained it to you.

Nevertheless, in a recent post, the insurance companies cite to a story about Boulder County (Colorado) District Attorney Stan Garnett’s concerns over public safety in bond setting. They post the article, and then they say, “Apparently, the so-called ‘Colorado Model’ isn’t working so well.”

Once again, though, the insurance companies are misleading people or likely failed to actually read the story they posted. If they’d have read it, they’d have seen that the DA was having a problem with judges continually letting so-called high risk people out on bonds with money amounts that the DA thought were too low.

That’s not the “Colorado Model” – that’s the “American Money Bail Model.”

The DA cited to a case involving a guy named Lobato as an example”

“Lobato is a good example of a guy who comes in, gets a bond of $10,000, which he is immediately able to make, then turns around and allegedly commits another serious offense and then gets a bond of only $15,000 which [he] is also able to immediately make,” Garnett said. “In hindsight, the (first bond) was not set high enough to protect the public.”

All the other examples he cited were the same. People post money, get out, commit new crimes, and then post more money.

That’s the essence of the money bail system in general, and the commercial surety system in particular, both of which allow high risk people to pay to get out of jail, commit new crimes, and then pay to get out again. And, as usual, nobody ever forfeits the money for these new crimes. That particular law – the law that says you can’t forfeit money for public safety – is courtesy of your bail insurance lobbyists working over the past 50 years, and it’s basically the same in every state in America.

Like I’ve said before, the only amount of money that will keep anyone safe is an amount that detains, and that’s unlawful when set to detain on purpose. So, for now in Colorado, we’re stuck with a system – based on the money bail and commercial surety models – that allows high risk people to buy their way out of jail.

So, let’s review. What model was the judge using in the Lobato case? The money bail model. What’s not working so well? The money bail model. What do the insurance companies want us to continue to use? The money bail model.

Again, we here in Colorado know all that, so the post must be designed only to make bail agents think the bail insurance companies are making progress. They aren't. 

  

Tuesday, April 18, 2017

"Model" Bail Laws

After far too long, I’m finally posting the paper I’ve been working on dealing with pretrial release and detention. You can find it here.

In this generation of bail reform, jurisdictions are changing – both voluntarily and by force – their release and detention laws, policies, and practices. This paper answers the question, “If we change, to what do we change?”  Knowing this answer might help places that are still unsure of what a lawful, purposeful, in-or-out pretrial release and detention process should look like, and the steps required to create and to legally justify it.  

To me, the hard part about “model” bail laws isn’t necessarily what we should do to make sure we get good outcomes after a person is determined to be releasable. The hard part is re-drawing that initial line based on whom we want to release and whom we want to detain, which, in most cases means re-articulating both a narrow charge-based detention eligibility net and more refined further limiting process following fundamental American notions of fairness and liberty, all while infusing this generation of risk research into the mix. I’ve noticed a lot of people aiming at this target lately, and so I hope this helps with the overall conversation.

The whole issue is a bit more complicated than simply replacing charge with risk. In the end, you’ll see that the two have to work together. The paper is long because of that complexity, but you can skip to the end, where I lay out various templates of a release/detain dichotomy for a model based on the history, the law, the research, and the national standards. If you then want to know my justification for that model, you can read the other 190 pages. Jurisdictions certainly don’t have to use my model, but my hope is that in the future, jurisdictions will nonetheless see my justification, and then provide the same or similar justification for any changes to their laws.

Many people are asking where actuarial pretrial risk assessment instruments fit into all of this. The answer is that they are fabulous at helping with 99% of everything we are trying to achieve with pretrial release and detention. Nevertheless, my analysis concludes that we cannot use them solely to determine detention or detention eligibility. That seems pretty obvious when you say it out loud, but laying down a proper justification made the issue a bit complicated.

I’m sorry for the length and the fact that there is no proper “executive summary,” but, frankly, this paper isn’t really for mass consumption. Nevertheless, people who are at that point where they are putting pen to paper to craft the words of their constitutions, statutes, and court rules, will definitely want to read it. There are other discussions, as well, that might help those of you trying to think through the whole charge versus risk question. And, of course, if you’re just really obsessed with bail and no bail – like I am – then you can pour through it and call me with any questions.


I have a hunch about bail reform in America. My hunch is that the first two generations of bail reform didn’t work for three reasons: (1) judges weren’t involved; (2) we worked mostly in the federal system, and didn’t take the time to walk states through the same process; and (3) we never really had all the answers. In this generation, judges are involved, and we are working with the states. And with this paper, I personally believe that we now have some of the final answers to give to states trying to create a more purposeful and possibly moneyless system. 

And you thought all I did was complain about the insurance companies! 

Saturday, April 15, 2017

Modifications Sought for NJ Bail Reform?

So the insurance companies are now displaying a letter from the NJ Attorney General saying that he wants modifications in bail for persons arrested on gun and eluding charges. 


The industry posts the story, and then adds commentary saying "The wheels are starting to come off of NJ bail reform," and "The failures of NJ bail reform are well documented."


That's some pretty hyperbolic commentary, given that the NJ AG didn't ask for the one thing the insurance companies want in all cases -- the re-introduction of money.


Those insurance dudes don't get it. NJ has created a super wide detention eligibility net, and could quite easily detain persons showing any kind of heightened risk to public safety. Adding money to their bonds -- the only solution posed by the insurance companies -- won't do a thing for danger, and everyone in NJ knows that. Heck, even the insurance dudes know that. That's why most of their posts are mixed messages, with statements warning about all those dangerous defendants while simultaneously talking about the presumption of innocence. Right now, you have the head of ABC trying to start a national bail fund for poor people while the head of PBUS continues to say, "people aren't in jail because they're poor."


Nobody except the insurance companies is saying to add money back into the bail process to make people safe. I've spent the last 10 years showing how money doesn't make anyone safe, and the bail industry has spent the last 10 years making sure they don't have any responsibility for public safety. Some of our worst failures over the years have been when super high risk people bail out of jail on a surety bond and commit heinous crimes. Just a few weeks ago, a guy in Colorado bailed out on a surety bond and was promptly arrested for a double homicide. Nobody assessed him, nobody supervised him, and he didn't even have any other conditions besides the money, which nobody even forfeited. 


If I thought that the people who run these systems paid any attention to the insurance companies' various Facebook accounts, I might be worried that they'd be duped in some way. But everybody I know in criminal justice knows the score. The only reason these stories -- and their crazy commentary -- get posted is to convince bail agents that somehow they're winning the war so that they'll keep sending money in to continue the fight. 


So go ahead. Keep sending it in. You're paying for the salaries of people who are systematically killing your businesses.




Thursday, April 6, 2017

Bail Insurance Companies Spread False and Misleading Letter


The website “U.S. Bail Reform News,” a pretty weak attempt by the insurance companies to provide slanted information on bail reform, recently put up a post about a Colorado district attorney warning Maryland about bail reform. What they left out tells you something about whether you can ever rely on that site for anything but bogus information.

The insurance companies’ ties to that particular DA’s office go back a long time. I was once in the room when five or six DA’s from that office, along with some bail insurance dudes, were trying to convince our county commissioners to de-fund our pretrial services unit. So back then, as the story goes, the DA in charge got pretty hammered by the rest of the system. He liked bail the way it was – money, money, all the time – and the rest of the system voted him down and made some changes. He was so upset – and I mean, like, upset the way a six-year-old gets – that he never forgot it. Ever since then, that particular DA’s office has done everything it can to try to “go back” to the good old days with money, bail schedules, and DA’s deciding on the amounts, and to “get back” at the people who made the changes. If I listed all the dumb things that office did when it came to getting back at everybody over the bail project, you’d want to barf. Or send them to Washington.

And all that childish pride, that incredibly irrational opposition against everything that is bail reform (including opposition to many things that would help with public safety – the DA actually once said he “didn’t believe in research” or "didn't care about the research," which was something monumentally dumb for a lawyer to say) was just the thing to get the insurance companies excited. So when Maryland came along, those companies got the current DA to write a letter with a current county commissioner and the current sheriff, saying that bail reform failed. I won’t bore you with the details, but there were only a couple things wrong with the letter: (1) it was factually incorrect; and (2) the people who signed it weren’t even around and in any position to comment on it one way or another. The two are related, I suppose. Since they weren’t around when we did stuff, they didn’t know that what they said about it was wrong. The commissioner actually testified before the Maryland legislature about a “10 County Pilot Project” in Colorado. Well, guess what? There was no such thing. It simply never happened. That’s either dumb or . . . no, it’s probably just dumb.

Anyway, a district court judge in that same jurisdiction drafted a declaration about the letter saying: (1) they were wrong; and (2) they weren’t even there. We gave that declaration to Maryland and to the people in Texas, and we continue to give it out to anyone who trots out the dumb letter.

As a side note, it may interest you to know that the bail insurance companies once requested the County to submit to them some sort of document about the bail project. You'll never see that response, though, because the County itself said the bail project was a success. Obviously, that wasn't the answer they wanted. So they went with the letter.  

This whole thing follows a trend I have written about before. The insurance companies will pay anyone to write or do anything to help them, and they really don’t care if what comes out is even true. Then they tell all the bail agents around the country to look at it like it’s some sort of victory, but they never mention the fallout from providing false information to various officials and what happens whenever I correct the record.

All this fighting by the insurance companies – all this desperate use of false information – is why judges are going to simply stop using commercial surety bonds. That’s the fallout. It won’t matter whether you leave money in or take it out. After all, look at New Jersey. All that fighting led to money being left in the mix, but judges simply aren’t using it. This is what’s going to happen around America. And it’s due to the insurance companies’ inability to tell the truth about even stupid things.

“We have a letter!”    


Big deal. We have the truth. 

Wednesday, March 22, 2017

Bail Insurance "Accountability"

Here's an example of bail insurance "accountability" in El Paso County, Colorado.

Defendant: Gustavo Marquez

Case #1 -- 17CR1150, felony assault, kidnapping, child abuse. No risk assessment, no supervision, released on $5,000 surety bond with no further conditions.

Case #2 -- 17CR1586, while on release for case # 1, arrested for double homicide (victims = 15-year-old-boy and 16-year-old girl). Now being held without bail.

The kicker? Nobody forfeited the $5000.




Sunday, March 12, 2017

My No Spin Zone

I have no idea why bail insurance people (including the insurance infested PBUS) can't report anything without considerable spin. Here's the truth about a couple of things they've reported on lately.

First, the 11th Circuit remand was not a "huge win" or a "major blow" for anyone. It got sent back kind of on a technicality (an important technicality, sure, but still a technicality). I used to write opinions for a circuit court of appeals, and this is not the kind of opinion that means much of anything. The district court judge already thought Walker was likely to win on the merits, and if nothing changes, he may well find the very same thing again. Another injunction, another appeal. It's a royal pain in the rear to have to do stuff over again, if it comes to that, but it's not a huge win for anyone.

The absolute truth (which people on "my side" don't even like to hear) is that preliminary injunctions are really rare, and super hard to get. I never expected one, especially on a tricky topic like bail. In fact, over time, I think we'll see both wins and losses in the district courts. I predict, however, that the "no money bail" push will ultimately be embraced by the federal courts. It's just going to take a while. If you do see a bunch of preliminary injunctions, though, that's really bad news for money bail. It's why the insurance folks are spending so much money down in Texas.

Second, somebody apparently watched the Pi-Con pretrial conference, made fun of it, and said it meant that everything was going to swing back the insurance company's way. I was there, and what I saw actually gave me quite a shock. We were going to watch a debate about money bail from a more conservative guy (Mark Levin from Right on Crime) versus a more liberal guy (Rep. Ted Lieu), and I expected disagreement. But there wasn't any. Both predicted the end of money bail because it made no sense whether you were conservative or liberal. Mark mentioned possibly using defendant collateral, but not through families or through a commercial surety system.

The absolute truth is that the disagreement between conservatives and liberals will come not from the elimination of money, but from where to draw the line between release and detention in a moneyless world. Nobody has gotten that far yet, but they soon will.

I also talked to more than a few judges, and they said essentially what I heard at a Conference of Chief Justice's conference not long ago. The judges said, "We just aren't going to use commercial sureties anymore." You can fight all you want, but if you leave money in the system and judges simply don't use it, it's all over. You can try to force judges to set a surety bond -- I've seen many attempts of that in the states, some even successful. But I've never seen anyone force a particular amount, and that's where all the forcing fails.

There's still time for bail agents to find a place in this new world of pretrial release and detention, but you won't get there listening to the insurance companies.