Thursday, February 15, 2018

Fifth Circuit Affirms Merits Claim in Harris County

ABC spins everything, so I wasn't surprised they'd try to spin the new opinion from the 5th Circuit Court of Appeals.

ABC says, "There's no right to affordable bail!  Bail schedules are constitutional!"

The problem is that the court didn't even rule on those things.  It didn't need to because the Harris County bail practices were so bad that they presented clear constitutional violations without having to examine any broader issue.

Read the opinion carefully. The court said it AFFIRMED plaintiff's claim that Harris County violated the Equal Protection and Due Process Clauses of the Constitution. Does that make sense? ABC said Harris County didn't violate the constitution, the Fifth Circuit said it did. Bang. Done. Let's go to trial if you really think things have really changed.

The rest -- a bit of a deviation from the district court's remedy for the violations -- is what ABC is trying to use to spin it their way.

Now I'll  be honest with you. I don't like the fact that the new remedy allows a judge to -- theoretically -- keep a bailable defendant in jail with money. But that raises substantive due process, excessive bail, and state right to bail issues that weren't even raised in this case. Heck, even people in Texas know you can't detain outside it's own net. They said in on the record down in Houston.

I fully expected to have cases actually go against us occasionally. And if one does, I'll report on it. But this case ain't one of those cases.

Saturday, February 10, 2018

Six Things Showing The Bail Industry Doesn't Care About Victims

Besides saying how much they care about the truth (and yet, not telling it -- see my last blog), the bail industry keeps trying to convince people that it cares about victims. Here are six things showing that it doesn't.

1. The bail industry doesn't believe in (and lobbies hard against) risk assessment tools, which are actuarial tools designed to help judges determine how risky a defendant might be to potential victims. Instead, the industry says bail agents can determine risk by looking at a defendant, and apparently fully assess risk through some sort of process known as the "circle of love," which essentially holds that if you don't have the circle, you must be risky. In the end, the bail industry thinks that people who have money are low risk, and people who don't have money are high risk. Otherwise, it says, those defendants would be out of jail, right? Man, you can't argue with that logic.

2. The industry will bail out anyone no matter how risky. As long as you gots the cash, you're out. Again, this is tied to the industry's perverse way of assessing risk, explained above.

3. The industry refuses to supervise for any defendant behavior other than coming to court. That means that if a person is likely to create a new victim, or violate some condition of release designed to keep people from becoming victims, the bail industry wants nothing to do with it. Getting people back to court is all it cares about because that's the only way it makes money. All its talk about public safety is based on a severely strained logical argument that when people miss court, they automatically go out and start committing tons of new crimes, which is just moronic. The essential business model of the bail industry is only designed to deal with court appearance. Public safety simply doesn't fit into that, and whenever states attempt to make bail agents supervise for public safety (often by forcing them to forfeit money for new crimes), the bail industry fights back. Don't believe me? Ask anyone in Pennsylvania.

4. The industry has made it so that in virtually every state in America bail agents can only forfeit money on a commercial bail bond for missing court. Nobody ever loses money if a defendant commits a new crime. This leads to the perverse situation where a dangerous person keeps getting out on bail, committing more crimes, and keeps bailing out, all without any bail agent or insurance company losing any money. Now I fault judges for this revolving door stuff, too, but the laws keeping the industry from losing money for new crimes come courtesy of the national bail insurance companies. I already wrote about Maurice Clemmons, the poster child for this sort of constant bailing out and creating ever more victims here. He was continually bailed out by a for-profit bail bondsman until he finally killed four police officers. If judges keep setting money bonds for dangerous people, bail agents will keep on helping them get out of jail, no matter how many victims it creates. Oh, and by the way, the industry has made it incredibly unlikely that it will ever actually forfeit any money even for court appearance. Check out most state laws that provide loopholes and numerous extensions and exonerations for the bail industry. And when the industry actually does have to forfeit something, it often sues to keep from coughing up the dough. Most state court bail cases deal with bail agents trying to keep from paying a forfeiture.

5. This whole way of doing business causes, as the New Jersey Supreme Court wrote, "problems at both ends of the spectrum." What that Court meant was that the money bail system keeps certain lower and medium risk people in jail and allows certain higher risk people out of jail. When you keep low to medium risk people in jail due to money, it actually makes them higher risk to commit more crimes. And when you allow certain higher risk people out of jail, you naturally run the risk that they will commit more crimes because, well, they're higher risk. More crimes means more victims. That's what the money bail system does.

6. Finally, the industry lies about what it does for victims. If the industry actually cared about victims, there'd be a few fundamental changes the industry would make in order to deal with criminal activity. The fact is that when the rest of the country decided that public safety was a valid constitutional consideration for limiting pretrial freedom in the 1970's and 1980's, the bail industry simply failed to keep up. Telling the truth to victims means telling them that the industry is only in business to make sure the defendant comes to court. Telling victims the truth means telling them that the industry thinks it can determine risk by how much money someone has. Telling victims the truth means telling them that the industry is quite willing to bail out anyone -- no matter how risky -- so long as he or she has money. Telling victims the truth means telling them that the industry doesn't even care if that person continues to commit new crimes. Telling victims the truth means telling them that the industry has for decades championed laws designed to allow high risk defendants to continue to commit crimes without incurring any liability on bail agents.

In short, telling victims the truth means telling them that the money bail system actually creates victims.

Tuesday, February 6, 2018

Big Blow to Money Bail in Atlanta

I spend all my time working with states -- mostly Supreme Courts and on bills -- so I often forget to report on things happening all over the country in our municipalities. Here's an article about what's happened in Atlanta today. And it all started with a simple letter. 

"Bondsmen argued that victims deserved to have their cases resolved in court." 

Hey, ain't nobody denying that. It's just that everyone figured out that a money bond doesn't really motivate any better than a bunch of other things, like . . . well, like practically everything. And those other things don't cause people to sit in jail. 

Watch out -- this stuff will slip up on you! 

Friday, February 2, 2018

ABC's Big New Mexico Mistake

Today I see ABC posting a story about legislative repeal of the New Mexico bail rules. Look at that! Twenty three shares, and eighteen likes and loves! Can it be?

Guess what? The legislation is a memorial -- defined in New Mexico as a formal expression of legislative desire. That means it can't repeal anything. In fact, that's the way it works in New Mexico with bail. Court rules trump statutes.  So this bill is just a statement by legislators about some rules that the bail industry doesn't like. It's like getting a bill to congratulate your grandmother on her 100th birthday. Nice sentiment, but it won't stop her from turning 101.

Before you believe that ABC is working hard to help repeal these rules, realize that it was ABC that didn't even know New Mexico was a "court rules" state to begin with. That's right. Your bail experts over at ABC didn't know it. That's why it trumpeted the "historic compromise" of the constitutional amendment. It tries now to act like it knew all along, but it didn't.

New Mexico was, quite possibly, the biggest mistake ABC has made to date -- and it made that mistake because it didn't know enough about bail. This is what happens when you let insurance companies run the strategy. So of course ABC will do whatever it can to make it look like it's doing something about New Mexico. But just ask anyone -- they flubbed it.

These rules aren't going anywhere. That's because if you want to lock up dangerous criminals, you can do it easier with the rules than with money.

And, really, you all need to start paying attention. Like, you better get ready for what's going to happen in the 5th Circuit.

Thursday, February 1, 2018

The American Bail Coalition and the Truth

I often see posts by ABC talking about the "truth" and the need for everyone to tell it. Of course, that leaves people wondering, "How can we know when something is true or not?"

Well, here's one way: to learn the truth about what an article says, just ask the author!

ABC recently sent a memo to a bunch of people describing an article in a certain way to help the bail bond industry. Later, the actual author of that article sent a letter to those same people refuting the memo and saying, essentially, that ABC is full of it. So what was truth? The memo's take on the article, or the author's own take on the article? I'm going to go out on a limb here and say ABC didn't tell the truth about an article, and the author did.

And it doesn't really matter what I think. What do you suppose the group of people who initially got the memo think? Right. The think that ABC is so oily that it can't tell the truth even when it might be easy to do so. It cites an article and actually gets admonished by the author! How often does that happen?

I once heard a lobbyist for the bail industry say, "I can't vouch for the truth of the statements I make on behalf of others." And man, he was right. These guys can't even vouch for the truth of what they say on their own behalf.

The lobbyists for ABC are hired guns, told to say anything to keep bringing in the money -- even if it means a ton of people have to suffer for it. So we really can't expect the truth. There's too much money at stake.

And so here are the real culprits, the bail insurance companies telling those lobbyists to write about how much they care about the truth -- but not necessarily to tell it.

AIA Surety
American Surety Company
Bankers Surety
Black Diamond Insurance Company
Palmetto Surety Corporation
Sun Surety Insurance Company
Universal Fire and Casualty Insurance Company
Whitecap Surety

And . . . because saying an article says something when it really doesn't say what you say it says is a weasel move . . . you get the weasel pic!

Wednesday, January 24, 2018

The Definition of Bail

As more and more states get involved in bail reform, it's good to remind everyone once again about the legal and historical definition of the word "bail." If you Google my name and the title of the document "Fundamentals of Bail," you can read a 100 page justification for why the correct legal and historical definition of bail is a process of release. The process is always conditional, by the way, as even the broadest definitional process will always include a condition to return to court.

The purpose of bail is to provide a mechanism to release people pretrial, just as the purpose of "no bail" is to provide a mechanism to detain people. It's technically improper to say that a purpose of bail is to bring people back to court or to make the community safe -- if anything, these are purposes of conditions of bail or release, or limitations on pretrial freedom.

Bail is not money. Money is a sub-condition of the return to court condition. In secured form, money is a condition to precedent to release, which is why it often keeps people in jail. Some places define bail as money, and you can't really blame them because money was the only sub-condition attached to the return to court condition we had for 1,500 years. We defined  "bail" as money in Colorado for decades until we actually studied bail, and then we changed the definition to better (t's not perfect, mind you) reflect the process. Some states, when making changes to their bail laws, have actually replaced the word bail with the word release. Just recently I read a Missouri court rule that says all bailable defendants have a right to release pretrial. That's the correct way to express it.

If you define bail as money, lots of things will be confusing to you. For example, if you say you want to get rid of "bail," meaning money, other people from other states will wonder what in the world you're talking about because they actually have a right to bail in their constitutions. They'll argue with you and you'll be confused as to why. The bail industry has been trying to use this confusion convince people that the purpose of bail reform is to limit or eliminate the constitutional right to bail. That just ain't true.

As another example, you'll  be confused by what the U.S. Supreme Court has said about bail over the years. When the Court equates the "right to bail" with the "right to release" or the "right to freedom before conviction" as it did in 1951, it just won't make sense if you think bail is money.

As yet another example, you might even be confused by the national standards on pretrial release and detention, which, correctly, describe money as a condition and do not equate it in any way to the process of release.

If bail is release, then the right to bail must be . . .  wait for it . . . a right to release! That's true, too, even though a heck of a lot of bailable defendants don't get released.  Usually, when bailable defendants aren't released, we see bail reform. And we're seeing it now, but it took a heck of a long time to figure out what to do about it. That's due to two things most people simply don't know about bail. The first is called "the big change," which relates to a change America made from English law, and you can read about it in my Model Bail Laws paper. The second it what I call the 8th Amendment loophole, which is based on a line of unfortunate cases, which you can read in my Money as a Justice Stakeholder paper. That loophole, by the way, is being eviscerated by the latest wave of cases against money bail that simply avoid any 8th Amendment claim whatsoever.

I'll leave those for another day. For today, a "basic" of bail is to know it's definition. And that definition is this: bail is a process of conditional release.

By the way, if you're relying on ABC to help you with this bail reform movement, you may want to send them my papers. They tried to define bail in a recent court case, and the federal judge said they got it wrong. Not understanding the proper definition of bail doesn't say much for the people representing you in bail-related matters. That's probably the biggest understatement I could ever possibly make, but that's where we are.

Thursday, January 18, 2018

A New Low, Even for PBUS

So yesterday PBUS called for the arrest of Governor Dan Malloy, apparently because he's a "supporter of bail reform." It's actually worse than I make it out, because PBUS made this statement after signing a petition wanting him arrested for immigration issues, apparently thinking that any arrest of a bail reforming governor for any reason will somehow help the cause of keeping money and profit alive in bail.

This is so monstrously stupid, so incredibly dangerous, and so completely incomprehensible for a national "professional" association to do, that I have come to doubt whether PBUS knows anything at all about representing a group of people at the national level.

It's not the first time I've heard such things from PBUS, which apparently thinks running a national association is like shooting a reality show. I've known lots of national professional associations, and the worst of them is still a thousand percent better than PBUS.

But this seals it. If I say you aren't worth me even mentioning you anymore, then you're in big trouble. Bail agents, from now on, if you think you have any hope at all in this fight, you better place it with ABC. You won't hear "PBUS" from me any longer. There's simply no reason to believe that PBUS is an effective national organization that has any hope to change the tide of anything. It's become entirely irrelevant except to the extent that it harms your cause.

So long, PBUS. And keep up the great work -- it actually makes my job a lot easier.