Thursday, November 16, 2017

Bail Insurance Companies -- "We Care About Victims, Right?"

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.    

Monday, November 6, 2017

The Last Days of Bail

"The suggested system does away with monetary bail. [Money] bail arose and flowered during a period when the law had little regard for the rights of the poor. Debtors prisons flourished. Workhouses were used to contain paupers, who were considered a moral pestilence. The adherence to the archaic system of monetary bail is inconsistent with our present legal thinking. The monetary bail system cannot long survive the recent recognition of the precept that a poor man is entitled to the same justice as the wealthy man."

John V. Ryan, The Last Days of Bail (1967)

Friday, November 3, 2017

Academy of Justice Report on Reforming Criminal Justice

If you follow this this link, you'll find an excellent paper written by Megan Stevenson and Sandra G. Mayson on pretrial release and detention within a larger report by the Academy For Justice titled, Reforming Criminal Justice.

That report is an ambitious attempt to "bridge the gap between scholarship on the books and legal reform on the ground," which is critical in the field of pretrial release and detention. 

The Academy for Justice itself thanks the Charles Koch Foundation, Arizona State University, and the Sandra Day O'Connor College of Law (ASU Law) for their support. 

Tuesday, October 31, 2017

Bail Industry Language

Deal Bail Industry;

I know you've been struggling for 10 years now to find your footing, but I still believe you haven't quite gotten a handle on what you should and should not say about bail. Accordingly, I'm giving you the following advice about what not to say:

You can't say that money bail makes the defendant "accountable" because being accountable is being held responsible for one's actions, and in bail we haven't even proven that anyone has done anything yet. Accountability is a punishment term, so find a better word.

You can't even say that commercial sureties are "accountable" when, in fact, they push off all the liability and costs to the defendants and their families. Commercial sureties aren't accountable for anything. And bail insurance companies are about fourteen steps removed from even that level of accountability. They literally don't do anything.

You can't say that bail is all about "freedom" on the one hand, and then post a billion Facebook stories about all the horrible people who shouldn't be let out of jail. Face it, you'd be fine with them being let out of jail so long as they paid some money. Your inconsistencies are killing you.

You can't say that "bail is constitutionally protected" when you define bail as money or, worse, as commercial bail. Bail as a process of conditional release is protected by the constitution, not money bail or you. We're not trying to get rid of bail -- we're trying to make it the process of release it was always meant to be, and it just so happens that money gets in the way of that.

You can't talk about public safety period, so stop trying. You can't forfeit money on a bail bond for anything but failure to appear for court. You all actually make a lot of money when people commit crimes while on pretrial release so long as they don't skip court, and you know it. I actually heard a bail insurance dude recently try to link his business (court appearance) to public safety by saying, "When they're coming back to court, they aren't committing new crimes." Man, that's just stupid. What does he mean -- does he mean that while they're actually on the bus coming to court they can't possibly commit a crime? You know public safety is your Achilles heel, but it's the bail insurance companies that created that dilemma over the last several decades. They're the ones who always fought when states tried to allow forfeiture of a bail bond for new crimes. They did it again most recently in Pennsylvania.

You can't say, "They're not in jail because they're poor, they're in jail because of (fill in the blank)." Most of the times that you fill in this blank, you fill it in with something the defendant did, which means the money is punishment and thus unconstitutional. And beyond this, saying that they can't afford their charges or criminal history is just another way of saying they can't afford their risk. Not affording their risk means using money to detain, which is unconstitutional whether it's intentional or unintentional. If you don't know what I'm talking about, you need to read my last paper. And, by the way, if even one person is in jail because he's poor, we need to fix the system.

Oh, and quit bringing up Martin Luther King. The fact that he was once bailed out back in the day is beside the point. If he were alive today, I'm pretty sure he wouldn't be a strong advocate for the money bail system. I already wrote about that here.

I'm not going to help you with what to say because I think the bail insurance lobbyists need to figure that out for themselves. Besides, I've told you all enough of that already, and I'm pretty sure nobody listened.

Just a bit of friendly advice!

Very truly yours,


Wednesday, October 25, 2017

ABC Insults California Chief Justice -- Wonders, " Why Aren't We Winning?"

The American Bail Coalition took its turn presenting to the California Detention Workgroup right after me. ABC got its chance to forward its argument. It put together tons of "resources." And it had the list of principles the Chief Justice wanted the Workgroup to consider. Based on the way bail was done in California, it was clear that the Workgroup was looking at ways to improve the process.

What did ABC likely give them? Arguments for keeping everything the same.

And then, when the report comes out and pretty much decides not to keep everything the same, what does ABC do? Insult the Chief Justice.

Yep, for real. In its statement, ABC said the Chief Justice ignored reality, didn't keep her oath of office, was soft on crime, and was playing politics. Nice going ABC. In your zeal to make yourself look good, you've now personally insulted the highest judge in the state of California. You deserve whatever comes from that.

The bail industry has fundamental flaws with its current strategy. As I've said before, this strategy is baked into the fabric of the bail industry's insurance lobbyists, and has existed since the 1960s, when a bail industry representative told attendees at the National Bail Conference basically, "Good luck trying to get rid of us."

So, okay bail agents, keep on sending ABC and the insurance companies all that money. After all, they help pay your losses . . .  oh, wait, they don't. Well, then they hire people with great arguments for keeping the bail industry alive . . .  oh, wait, maybe not. Well, at least they aren't going around insulting judges, the very people who can eliminate your whole industry simply by choosing not to use you . . . oh, wait.

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 detainable 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.