The bail insurance companies continue to search for a reason for their existence. In its latest post, one bail insurance company says, “The bail industry . . . has always been about justice for the victim.” It has nothing to do with release, he says: “The bail industry doesn’t release defendants from jail.” No, now it’s all about the victim. This is a huge shift from other purposes the bail industry has floated in the past. But let’s just see how that industry stacks up with victims in the representative case of Maurice Clemmons, a case that is horrible, but indicative of one of the big problems with money bail.
Clemmons had a long and violent criminal history, and at one point he was sentenced to long prison terms. In 2000, Governor Mike Huckabee of Arkansas commuted a 108 year sentence to 47 years, making Clemmons eligible for parole. Violent crimes, parole violations, and further paroles followed. Then, in 2009, he was arrested for assaulting two police officers. Without any risk assessment, without seeing a judge, and without any supervision, Clemmons was released on that charge by paying a bondsman a fee for a $40,000 bond. Oh, and I’m pretty sure that when that particular transaction occurred, nobody checked with the alleged victims in the current case, or uttered a single word about future victims. Clemmons just paid and he got out.
Within just a few days, Clemmons’ mental state worsened, and police arrested him for raping two children ages 11 and 12. New crimes, new victims. When the judge set Clemmons’ new bail amount at $190,000, he apparently believed Clemmons would stay in jail. After all, he’d been evaluated by two psychologists, who said Clemmons was dangerous and likely to commit further violent acts, and it seemed unlikely that anyone could afford a nearly $20,000 fee to get out of jail. Nevertheless, apparently giving Clemmons a discount from the usual 10% fee, a bail bondsman helped secure Clemmons’ release. Now I’m not certain, but I doubt very seriously that anyone from that commercial bail bond company talked to any of the previous victims in any of Clemmons’ cases, and they certainly didn’t seem to care about any future victims.
Future victims? Oh, yes, that’s how the story ends because within one week, Clemmons traveled to Parkland, Washington, walked into a coffee shop and shot and killed four police officers who were getting ready for their shifts.
As in virtually every other state, in Washington State you can’t forfeit the money on a bail bond for anything but failure to appear, so I’m assuming that the bail bondsmen covering the $190,000 didn’t lose any money on this deal.
And that, my friends, is how the bail industry truly deals with victims. In short, it could care less.
And my conclusion comes from personal experience, too. I’ve watched thousands of bail settings, and I’ve seen both prosecutors and police speak about victims. I’ve heard victims speak themselves. Heck, I’ve even seen victims ask the court to let the accused out. But I’ve never once seen a commercial surety say anything even once in any bail setting, let alone about a victim. Just today I’m reading that the man who went on a shooting rampage in California was out on a bail bond with something like a $160,000 financial condition. You tell me how in the world the bail insurance companies helped any of the 14 dead and injured in that case, let alone the guy the shooter allegedly stabbed before he went nuts. Wait until this all shakes out – I predict bad things for money bail due to this case.
In fact, if anyone out there made money in bailing out Kevin Neal, why don’t you just give all that money back to the various victims you care so much about. Then, start doing that every time someone commits a crime while on pretrial release. Heaven forbid, right?
Anyway, with that one bogus line about its purpose being justice for victims, the bail insurance company lobbyist has also apparently given up altogether on the bail industry’s otherwise noble purpose that existed since it began: to assure the release of bailable defendants so as to uphold notions of American freedom and liberty inherent in our system of pretrial release.
The bail industry’s (and, indeed, bail’s) articulated purpose has never been about justice for the victim; its purpose has always been based in the constitutional and statutory rights of all American persons to be free while facing charges in our criminal justice system. For a while in American history, lots of people were being held despite being “bailable” under current law. The bail industry was this country’s solution to that problem. Surely, we’ve always cared about victims of crime, even to the extent of enacting victims’ rights amendments to state constitutions and preventive detention (no bail) language to keep truly dangerous defendants in jail. But bail (release) has always been a defendant right, and it was always meant to mean the right to release.
In Stack v. Boyle, the case in which the Supreme Court equated the right to bail with “the right to release” and “the right to freedom before conviction,” Justice Jackson wrote: “The practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty. Without this conditional privilege, even those wrongly accused are punished by a period of imprisonment while awaiting trial, and are handicapped in consulting counsel, searching for evidence and witnesses, and preparing a defense.”
That purpose, to help with release, didn’t cover everyone, but it didn’t have to. It covered release, which is a pretty huge thing. In fact, right now I have people who are on my side of bail reform co-opting what should be the bail industry’s purpose to release virtually all defendants pretrial. The problem is that the industry has never really been about the victim (in 1898 it was helping America figure out a way to release bailable defendants who had no personal sureties), and it shouldn’t try to be about victims now because it will just seem ridiculous. Bail, and the means for release through the commercial industry, has always been about the defendant. And bail, release, and defendant’s rights are all covered by our constitutions. That should be enough.
In sum, the bail industry once had a pretty noble purpose. But now, in their quest to remain profitable, the bail insurance lobbyists are tossing that purpose aside for whatever they think will keep them afloat. One day the presumption of innocence doesn’t apply, the next day it does. One day it’s all about freedom, the next day it’s not about freedom. One day it’s public safety, the next day it’s back to court appearance.
In the end, if the industry itself doesn’t even know its own purpose, there’s absolutely no way it will survive.
By the way, the lobbyist also says that none of us bail reformers mention victims, which is absolutely untrue. First, I’m a victim of crime, and my family members have been victims of violent crime. Moreover, everybody in the justice system cares about victims, and to say we don’t is simply stupid. I don’t expect a bail insurance guy to know that, though, because he’s simply not at any of the criminal justice meetings I attend. Nevertheless, even before a few of us even did a pilot project (just a fourteen week pilot, so nothing permanent) in Colorado, we spoke to every victim’s representative in the state, who all understood and agreed to a better system than the money bail system (one that involved less random releases and that clearly could address public safety for past and future victims). All along the way in this movement, we have included victim reps and sometimes victims themselves at every major event. Moreover, in addition to prosecutors and law enforcement officers, who typically carry the weight on victim’s issues, the Pretrial Justice Institute has at least two board members with national victim advocate experience.
What do the bail insurance lobbyists have? Just a tendency to make up literally anything – no matter how false and ridiculous – to continue making all that money.
Yeah, I know this blog is kind of long. But what this bail insurance guy said is really pretty outrageous.