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.

Friday, March 3, 2017

Bail Agents Leading Bail Reform?

How does the one group of people who's neck deep in bail (i.e., the bail agents) end up completely outside of bail reform? That’s the question I’ve been asking myself lately. 

The answer isn’t all that complicated. It’s because the insurance companies don’t know anything about you, and they didn’t consult you when they decided on a strategy to fight everything in bail reform.

 I’m not kidding when I say they don’t know you. The other day the head of PBUS said you all had been around for 200 years. That’s wrong, and it’s proof that they don’t know your history. Commercial sureties have been around for 120 years, but that’s not a bad thing. The fact is, when commercial bail bonding came about in America’s history, bail bondsmen were the white knights – riding in to fix a system that nobody else knew how to fix. Your predecessors helped America figure out how to get people out of jail who shouldn’t have been in jail to begin with. It was a huge thing, and something you all should be proud of. 

 The point, though, is that the insurance companies don’t even know any of this, and yet they try to speak on your behalf. Now they simultaneously say states should maintain a right to bail, but that everyone who is arrested is a violent criminal and should be locked up. It’s the most contradictory thing I think I’ve ever heard. The other day someone showed me the hashtag, “savebailkeepeminjail.” Only an insurance goofball could dream that up.    

Then there’s that “fight everything” strategy. They probably don’t know this either, but that strategy actually got going in 1965, when Attorney General Kennedy held the first National Conference on Bail and Criminal Justice. There were two people representing the industry at that Conference, and guess what? Yep, they were both insurance guys. The first guy basically said, good luck trying to change anything. He gave no help whatsoever in trying to figure out the kinds of things the participants were questioning. Instead, he just kept saying that the system was great the way it was. In the end, he said: “We do say, however, that the bail bond business is something that will go on forever. It cannot be abolished.” So there.

 The second guy actually said a few things that current bail insurance dudes could learn from. First he talked about the presumption of innocence (you may recall that today’s insurance people used to argue that it didn’t exist at bail). Then he talked about surety bonds being a more equitable than England’s system, which tended to refuse bail altogether in much higher numbers. But in the end, he basically said that trying to change anything about his particular bail insurance industry was socialism, and that it would lead to the socialization of the entire insurance industry and ultimately all industry. Now, I wouldn’t call that figuring out solutions, would you? 

You bail agents could be the people who help everyone figure out what to do next, and yet you have chosen to give your power to insurance people, who don’t understand you, your history, or your potential place in the future of American pretrial release and detention.   

There's no place in that future for insurance companies. They know that, which is why they fight everything. Once you know it, you’ll cut them loose and maybe help everyone with a solution. Think about it – bail agents leading bail reform. It actually makes sense. 

Wednesday, March 1, 2017

PBUS Head: “We don’t want to kill our clients . . .”

“We don’t want to kill our clients . . . it sort of kills [our] repeat business.” Yep, that’s what the PBUS head said in an interview the other day.

Okay, I know that was probably meant to be funny, but I listened to the rest of the interview and I heard a lot of crazy-ass stuff – you know, stuff about George Soros being behind some secret cabal that means the end to money bail in America.

Look, I know people like to have an enemy. And I know it’s intriguing to talk about some dark, nefarious enemy who nobody even knows about, but who is really some grand puppeteer behind the scenes screwing things up for everyone. But in this case, it just isn’t so. I’m right here. George Soros is somewhere out there. I do bail reform everywhere. I’m not sure what he does anywhere. We haven’t talked, and I haven’t even seen one word mentioned about him except from groups like PBUS.

Bail agents, if this is the strategy that you told PBUS and ABC to pursue, then God bless you. But even if you did, I hope you realize how nuts it all sounds out loud.  

Friday, February 24, 2017

Bail Insurance Companies Care Little About Bail

Lately I’ve been spending a lot of effort on some big-time bail cases – one recent one even involved filing a brief in the United States Supreme Court. But can you guess who’s not involved in any of these cases? That’s right, the bail insurance companies.

 Even though these cases deal with pretrial release (bail) and detention (no bail) – how to do it, what makes it constitutional, etc., – the bail insurance companies either don’t know about them or they don’t care because technically the cases don’t involve directly taking away their money.

 That’s a mistake, though, because a bunch of us know that what the Supreme Court says about detention for, say, immigration cases, will likely foreshadow a future ruling on money bail. 

The insurance companies are winging it. While they’re spending all their time and effort on motions hearings, some really big stuff is happening that will affect their industry more than they think.

If you’re in the bail industry, but you don’t care enough about bail apparently even to know about these other cases, what in the world are you doing?

Wednesday, February 22, 2017

PBUS in Atlanta!

The insurance-infested PBUS is sending their fearless leader to stand bravely on the courthouse steps and then watch oral argument in the big 11th Circuit case in Georgia!

Time for a gut check:

1. Standing on the courthouse steps and watching oral argument at a federal court of appeals is absolutely ineffectual. I know, because I used to work in a federal court of appeals writing opinions. The insurance companies know it's dumb, but they're telling you bail agents they're going there so you'll think they're actually doing something. This isn't like some local county court, where you can sit there, frown, take notes, and then oppose the judge at the next election.

2. You'll win or lose in the federal courts based on the merits. Not based on politics, or public opinion, or some lame amicus brief. By the way, I filed my own amicus in that case ripping apart the Clement brief. Turns out, like the insurance companies that hired him, he doesn't know much about bail. And, the truth is that a big, difficult issue like pretrial release and detention -- pitting the 8th Amendment against the 14th Amendment -- will likely have a series of decisions that go both ways before we get the whole thing sorted out.

3. Someone has to confront the brainiacs working on the overall insurance strategy that simultaneously fighting for "bail" (you know, conditional release prior to trial for people accused of crimes -- one of the many big things we enjoy as Americans) and against defendants by calling them criminals and acting like nobody should be released pretrial is just boneheaded. I know you agents understand the difference between a defendant and a "criminal," so you just need to explain it to the insurance people. Tell them that if they don't like people, they can get involved in sentencing. The insurance companies' strategy makes you all look like you don't even understand your own profession. I know you do.

Saturday, February 11, 2017

Dear Bail Agents at PBUS:

This week you gather to talk about pretrial release and detention, something your profession has cared about since 1898, and the ancestors to your profession have cared about since 400 A.D. But you are at a crossroads, and I’m writing to give you a warning.

 Those of you who’ve read my blog know that I like bail agents. As I’ve said many times before, the bail agents I know are the salt of the earth, and likely care about the right to bail more than a lot of judges I have known. In my own little world, I have made people really anxious whenever I’ve told a state that there is nothing inherently wrong with private pretrial, that bail agents might have a place in the world of pretrial justice if they simply change their model, and that I probably wouldn’t even mind using money if someone could figure out a way to use it so that it works and is fair.

 But if you’ve read my blog, you also know that I’m not fond of the bail insurance companies or the groups erected to protect them, like ABC and the insurance-plagued PBUS. I have seen them trample not only ordinary people who get in their way, but also bail agents themselves when they stand between those companies and their money. Mostly, though, they’re a problem because they fight literally every effort at bail reform, and thus are a hindrance to pretrial justice. I have repeatedly written that their strategy to fight everything will only bring your livelihoods to a swift demise, and yet they believe that strategy is the only one that has any hope of assuring that they remain in business. That strategy is killing you, but they show no signs of changing it.

 New Jersey is a good example. When reform began, the insurance companies fought hard. No money? Never! Risk assessment instruments? They’re discriminatory and flawed (by the way, insurance companies arguing that actuarial risk tools are flawed is kind of funny, given they use them for literally every other kind of insurance)! Pretrial services supervision? Public welfare! Are there any poor people in jail? Of course not! Do any dangerous rich people get out who shouldn’t? Never! Use D.C. as a model? No, not for anything! What about Kentucky? They’re worse! 

 But what did all that get them in New Jersey? By all accounts, the potential demise of commercial bail bonding in a state that left money and bail agents intact. So now the insurance companies have a PR firm and are manufacturing stories about success, because most everything is going south. Just stop and think for one second – can you see where fighting literally everything a state is proposing can lead to that state thinking that the insurance companies simply aren’t being reasonable?  And the states are learning pretty fast that even if they listen to the insurance companies, those companies sill fight them later on. People are simply sick of the message the insurance lobbyists are giving. That’s why even though the New Jersey judges can still use money, they just don’t want to. That’s the insurance companies’ doing.  

 You’re going to hear a lot of upbeat messages this week about the bail wars. They’ll tell you how they asked to file a brief in Harris County, but they won’t mention that it’s recycled from the 11th Circuit and is unlikely to even be read by a district court judge except for comic relief. They’ll tell you they argued in Maryland, but they won’t tell you they lost the argument (well, they’ll say they added secret, last minute compromise language that will save the industry, but you can read the gist of it here). They’ll try to convince you that the new administration and Congress will bring an end to the reform, but they won’t tell you we have bipartisan support from groups as diverse as the Kochs and the ACLU. They’ll tell you that PBUS sent a letter – just yesterday – to the Ohio Sentencing Commission, and then I suppose it will dawn on them that the same day they trashed me by name on their website. Do you think the people from Ohio will look at one and not the other? I know those people, and they know me. Heck, I was on the email list that received the PBUS letter. So, overall, do you think that was a good strategy – “Please help us, but look at what we do to people who don’t?” Ask your PR firm. People remember these things and they all sink in. You’re going to hear a lot of upbeat things, but only because you keep them in business.

Don’t be fooled, bail agents. They’re using your money to fight everything that comes their way and hiring a PR firm to make you think they’re winning. They have to, because they’re not winning, and the alternative – to help bail agents survive this generation of bail reform – is not part of their strategy. But the reality is that there’s simply no place in the future of American pretrial release and detention for bail insurance companies. Those big numbers are coming down, and if you don’t have big numbers, you don’t need insurance. Their demise was bound to be messy, but you don’t have to let them drag you down.   

You all need to hire someone really smart (heck, hire the insurance lobbyist – he’s really smart), and tell him or her to think outside the box, ditch the “fight everything” strategy, and see if he or she can somehow convince all the other states to forget about all the previous nastiness and to take you seriously as a part of the system. The insurance companies will never do that for you. ABC and PBUS will never do that for you. Here’s the warning: you need to break loose, or you’ll be out of business. You know what I’m talking about.