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.  

Thursday, September 14, 2017

Bail Insurance Companies’ New Media Strategy – “Fake News”

As much as I hate the term, here’s yet another blog about “fake news,” only because the bail insurance companies don’t have the real kind.  

I was reading this this story about so-called fake news, and it focuses on a particular city in Veles, Yugoslavia, that has made fake news a sort-of cottage industry. According to the story, over 100 bogus websites were tracked to this one city, mostly run by young twenty-somethings hoping to make a few bucks when people merely click to read past the provocative headline. For those of you not paying attention, fake news is generally described as propaganda consisting of misleading information designed either to spread a message or make a few bucks. You make money by “baiting” people with a sensational or provocative headline, and then by getting them to click on it. It’s called “clickbait.”

This particular article focuses on one of the young dudes who creates fake news, but also on a guy named Mirko Ceselkoski, who the article calls the “clickbait coach,” and who used to specialize in websites spreading celebrity gossip and discussing muscle cars. Today, Mirko estimates that he helps about 100 youngsters – the article calls them his “pupils” – operating U.S. political news sites.

But his advice on how to create those sites is what really caught my eye. He said he tries to teach people to pick a story that is already trending somewhat, and then make it sensational, mostly by creating a really shocking headline. “The title is the most important part,” he said. Then, he said, you need to try to make your website look professional by mimicking legitimate sites with rolling banners and phrases like “breaking news” on them. Apparently the title of the site is key, too, as many of them use the actual word “news,” which, I suppose, makes people think they’re, well, legitimate news sites.

And then it hit me! That’s exactly what the bail insurance companies are doing. The title? Got it – says “U.S. Bail Reform News,” so it even has the word “news” in it just in case we weren’t sure. Professional look? Yeah, looks pretty professional and uses the “breaking news” phrase a lot. Titles of the articles? Here’s one: “San Francisco, CA – Suspected child molester FREE TO GO after Judge Joseph Quinn overrules bail setting.” Yep, pretty sensational, and it even names a judge in it so it’s nice and personal. Of course, the article itself never mentions that the same suspected molester would also have been FREE TO GO if he had to pay money to a bondsman, and that if he went out and molested another child, neither he nor the bondsman would forfeit any money. Details.

So, even though I hate the phrase “fake news,” I’m going to have to get used to saying it because the bail insurance companies are now doing it with gusto. And really, this isn’t new. Back in 2011 or so, I documented a speech in which a bail insurance guy said he was putting out information under another group’s title 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.” And just this year, the insurance companies got caught using another dubious news site to spread misleading information about New Jersey Bail reform.

By the way, it’s been a while since I mentioned the greedy weasels doing all this stuff – you know, the ones who don’t care if poor people stay in jail or if dangerous people pay their way out. Plus, a couple of them have come and gone, so here are the current members of ABC:

AIA Surety
American Surety Company
Bankers Surety (Bankers Financial Corporation)
Black Diamond Insurance Company
Financial Casualty and Surety – A new one! Welcome!
Lexington National Insurance Corporation
Sun Surety Insurance Company
Universal Fire and Casualty Insurance Company
Whitecap Surety

So, bail insurance dudes, because your mothers probably taught you not to lie, and because “fake news” is just a weasel’s way of lying, you get the Weasel Pic! 

Friday, September 8, 2017

Bail Industry Loses Hard in New Mexico

ABC and PBUS decided on a new strategy lately -- suing the states doing bail reform. It must have seemed like a really good idea at the big PBUS meeting, right?

Yesterday, the judge issued an order denying the industry's request for preliminary injunction in the New Mexico case. And man, that judge denied it hard.

Each substantive claim by the industry is quickly and succinctly knocked down -- sometimes in only one or two double-spaced paragraphs. That's an omen of things to come if and when the industry decides to go to trial. That is, unless you all think the same substantive claim will somehow become rational or legally meritorious between now and then.

Keep up the great work ABC and PBUS! The more you sue the people doing bail reform, the less likely it is that anyone else will even consider including you in any solution.

Tuesday, September 5, 2017

Bail Insurance Companies Hire New Media Guy!

This may seem like a gimme, but wouldn't you think that if a bunch of billionaire insurance companies wanted a media guy, they'd hire someone with experience in big-time media work or at least a graduate from a top American journalism school? Yes, you'd think.

But instead, they hire an ex-bondsman from New Jersey, whose expertise is a couple of websites that post stories under the genre of "Dangerous Bank Robber Free to Go on a Handshake!"

Mainstream media has already figured out the major flaw in the thinking behind these stories: in the previous world, bail agents would be quite happy releasing dangerous people so long as they pay a bit of money. As I've written about a million times before, money won't keep you safe.

So why him? I mean the posts won't work at all in New Jersey. In fact, the industry is gone there and if NJ cares about dangerous defendants, they have the ability to lock them up without money. And they probably won't work in New Mexico -- like I said, ABC screwed up in not knowing about the fact that NM was a "court rules" state. And it looks like they won't work very well anywhere else; everyone who studies bail quickly realizes the flaw in the bail industry's attempt to spin things concerning money toward public safety when money has nothing to do with public safety.

The answer is that this guy and his posts are designed to keep the rest of you bail agents from jumping ship. His entire shtick is "Bail Reform is Failing," and "Hey Look, We're Winning!" That's the stuff ABC has been trying to sell you now for 10 years through three or four different lobbyists. Think about it. Do you feel like you're winning this thing? As long as you think you are, you'll just keep sending in all that money.

I've been telling people for 10 years that bail reform is inevitable. That means there's no turning back. There's no "losing momentum," as ABC says. The only question now is how it will shake out when it comes to moneyless detention. I've told bail agents for years how they could be a part of the future of American pretrial release and detention, but they haven't listened.

ABC says they hired the guy "to act as a liaison between ABC and bail agents" and to "improve efforts when it comes to media and social media."

By hiring this particular guy, though, ABC is showing no real attempt to influence legitimate media. So the main reason must be the liaison part. But don't be fooled; this hire is mostly designed to keep you bail agents in the dark. I assume you'll start seeing the same sorts of posts in every state, and if that's all you read you'll be tempted to hang in there and keep sending your money to the insurance companies instead of forcing them to change their failing strategy, which has no basis in reality.

In fact, if you keep clinging to ABC and the insurance companies that are behind it, then I predict that on that day that the very last bail bondsman shuts his doors, you'll still read a Facebook post by usbailreformnews, sponsored by ABC, that says, "Bail Reform Failed! Hey Look, We Won!"

Thursday, August 31, 2017

A Tipping Point in Bail Reform?

I should have spent a bit more time talking about the Conference of Chief Justices’ brief in the Harris County case because it really is remarkable. You can find it here.

Remember that Harris County was sued in federal court over its bail practices, which were built upon the Texas bail laws. In a preliminary injunction, the federal district court judge essentially said that the way Harris County was using money bail violated the U.S. Constitution.

Now normally if that happened in any other area of the law, you’d see all the other states join together with Texas and say, “Whoa, now, we don’t need a federal court telling us how to do stuff – back off and we’ll take care of it in our court system.” And in most other areas of the law, the federal court might think, “Well, maybe I should just defer to the states on this one.”

But when it comes to bail and no bail, the Conference of Chief Justices – made up of the chief justice in every state, D.C., and American territories – essentially said the opposite. It said, “No, we actually need some help from the federal court because, “Despite general consensus and some notable reform, the promise of equal pretrial treatment for indigent defendants remains elusive.” In fact, it said, “Current bail reform practices will remain largely stalled pending clearly articulated constitutional principles that protect public safety and the pretrial rights of indigent defendants.”

The CCJ wrote that technically it wasn’t taking any sides, but then it came right out and wrote: “The Fourteenth Amendment prohibits the use of monetary bail that results in the detention of indigent defendants solely due to inability to pay.” There’s a reason why ABC went on a rant after the CCJ filed its brief, basically calling the justices liars (or “half” liars), blind to the truth, and arrogant (by the way, great strategy, ABC!). Of all the amicus briefs, this is the one that flattens the bail industry. This brief might irritate you, ABC, but you brought it on yourself by fighting the justices at every turn. This generation of reform could have been defined by the bail industry helping the states and the chief justices to find the answers; instead, you all turned it into a war with you versus everyone else. 

To me, the only thing holding back the Fifth Circuit Court of Appeals from affirming the district court would be some concern that it might be infringing on an area that the states felt they could handle. In this brief, the CCJ says, “Go ahead – you’re not infringing and we actually need it.”

If there’s a tipping point in this generation of American bail reform, then August 9, 2017, the day when every chief justice in America asked the federal courts to set limits on how the states use money bail, might just be it.

Sunday, August 27, 2017

So Much Happening . . .

First, here's an op-ed from the Editorial Board of the New York Times, talking about the lousy arguments the bail industry is using to keep money bail in place. A couple of gems from the editorial: (1) "Pretty much everyone who spends time examining the American system of cash bail comes away with the same conclusion: It's unjust, expensive, and ineffective, even counterproductive." (2) "But the profit motive can be a powerful bulwark against the truth."


Second, here's a single stop on my website where you can get all the briefs arguing against money bail in the Harris County case. Those in the bail industry trumpeting a brief signed by a few AGs might just note the brief signed by 67 current and former prosecutors and AGs representing 30 states and the District of Columbia. But wait, there's more -- defense attorneys through NACDL, religious leaders, the Cato Institute, NAPSA and PJI, the very conservative Texas Public Policy Foundation and Right on Crime, police and sheriffs, the American Bar Association, the Constitution Accountability Center, and even a single Harris County judge writing that he has proven that he can set bail lawfully without money.  

The absolute worst for the industry, though, is the Conference of Chief Justices, which filed a rare brief in support of the appellee (that's the person who was locked up due to money). The CCJ is made up of every Chief Justice in all 50 states and the American territories. I don't even have to tell you what they said; the fact that they filed should give you a pretty severe ache in your stomach.

By the way, I didn't have enough tabs on my website for the Harris County stuff, so I deleted my "donate now" tab. It may come to a surprise to you if you listen to the bail insurance companies, but I've never received a dime from that website. Not even one penny. In fact, while I'm on the topic, I would estimate that I did about 75-80% of what I did the last year for free.

If you're in the for-profit bail industry, the fact that I do most of this for free -- and that I would do all of it for free if needed -- should freak you out just a bit.

Because I'm not alone.