Thursday, May 10, 2018

Google and Facebook Banning Commercial Bail Ads

Several people emailed me to tell me about this. Yep, Google and Facebook are both banning ads from the commercial bail industry. You can read about it here.

Why is this a big deal? Well, in addition to just the fact of it, it's because of a couple of things called cognitive dissonance and backfire. Cognitive dissonance is basically the state of having inconsistent thoughts. People don't like it, and they mostly strive for consistency with their various views. To do this, they often seek information that reinforces preexisting views and ideas. This is a really powerful phenomenon; in fact, in a couple of studies a year or so ago, some researchers actually found that if you hold certain beliefs strongly enough, even objectively false statements will cause you to become even more firmly entrenched in your sometimes false views. In other words, presenting the actual facts to people holding certain false beliefs "backfires," and causes them to believe their false ideas even more strongly.

This, in my opinion, is why people in the bail industry are constantly befuddled by everything that's currently happening. Everyone in the industry has pretty firm beliefs, and so all statements -- true or false -- are likely woven into the existing narrative of why commercial bail is such a great thing. In fact, if those researchers are right, bail industry people will continue believing that money bail is a great thing, and no matter what we say they'll only believe it more firmly.

But the bigger problem for commercial bail is that the vast majority of people in the United States have absolutely no preexisting notions about bail. That's why, when you explain things to regular people, they don't necessarily like money bail. And it's why, for example, companies like Google and Facebook would immediately choose to forgo advertising revenue from the industry rather than to be a part of the money bail problem. See how it works? Now Google and Facebook have certain beliefs about money bail that they didn't have before, and presumably they'll be looking for facts to support those beliefs.

By the way, this rather dramatic showing of public disdain for the bail industry is very likely caused by the tactics of ABC, which fights everything, treats their own clients as criminals, and personally attacks and insults those who question the status quo. Oh, and when ABC says people are trying to get rid of people's right to bail, what they mean is money bail, and there's no right to money bail in America. Another part of ABC's strategy is apparently to confuse you about the law.

I'd tell you more about the law and the fact that ABC's overall strategy is failing, but cognitive dissonance and backfire tells me that you'll only take it to mean the opposite of what I say.

Saturday, April 14, 2018

The Bail Insurance Companies' Personal Attacks

Okay, I'd expect this from PBUS, but not from ABC. But once again, the bail insurance companies show how low they can go by posting personal attacks against various people they believe are behind this generation of bail reform.

They're trying to subtly hide them by putting all the personal attacks on a separate site and FB page, but unfortunately the address for that is the same address listed for ABC on it's main website. Make no mistake, if it's against bail reform and it's trashing someone personally who is for bail reform, it's probably the bail insurance companies that are responsible for it, no matter how many layers they use to shield themselves.

Specifically, ABC has been naming people and questioning their motives, insulting them, and even portraying them in horrible (I suppose ABC thinks they're funny) pictures. Really, has anyone ever taken a picture of a sitting justice on a state supreme court and portrayed him as the devil? Yes, the bail insurance companies have.

Early in my bail career, I named one guy publicly and quickly came to regret it. I shouldn't have named him because he was just doing his job, which just happened to include a radically different ideology than my own. In fact, at the time I named him, I didn't really even think I was doing it as a slight -- it just turned out that way later on. I named another guy privately, but he forced me to do it. Then he decided to become an expert witness for the bail insurance companies, and, well, you're just asking for trouble when you do that. I think maybe he retired.

Since then, though, I've really tried (and, believe me, it's hard) to not name actual people in this bail reform thing. I'll talk about the companies and their lobbyists, but nobody should have to walk around thinking some goofball has put their picture on the web with horns and a tail. If you know me, you know that mostly I talk about issues (feel free to read some of the papers on my website). I write all the time, and none of it is about individual people, unless you count someone like Alexis de Tocqueville. My last paper was 200 pages and all I talked about was constitutional language. Can't you insurance companies at least try to do the same thing?

I want you bail insurance people to ask yourselves a question. When you were little, and your mother asked what you wanted to do when you grew up, did you say, "I'd like to trash the personal character of anyone who gets in my way of making gobs of money?"

The other day a bail insurance dude asked, "Why don't you just ask the bondsmen?" Well, one reason is that whenever we ask people in your industry about the issues, we get personal attacks. And, bail agents, just remember that personal attacks are the sign of desperation. Argumentum ad hominem seems okay, but it never works. The fact that this logical fallacy even has a name ought to tip you off.

There's still time for you all to create a decent strategy around this thing that doesn't involve personal attacks. The fact that you make them at all, tells my you don't know what that strategy even is.

This is the sleaziest thing you've ever done, and it plays into the slow degradation of our civil discourse. For that, you get the weasel pic -- twice.

Sunday, April 1, 2018

ABC Says Bail Reform is Ebbing . . .

I say, better check out the front page of today's New York Times:

This thing is really only getting started.

And just wait until they do the deep dive into bail insurance companies!

Thursday, March 29, 2018

A Different Kind of Bail Case

Every so often a case comes across my desk that’s really interesting.

In the old days, if a judge set a money bond, you’d get some opinion on review saying, “We review this for manifest abuse of discretion, we see none here, so affirmed.” Or you might have a one liner saying that the judge didn’t violate the constitution. Or you might – just might – see it sent back to have the money amount adjusted. But not this time.

Nope, this time a federal judge ordered the defendant freed with no money attached. One day the defendant is in jail on a $330,000 bond, and the next day he’s FREE TO GO with NO SKIN IN THE GAME.  

It’s in a case called Reem v. Hennessy, and it’s out of the U.S. District Court for the Northern District of California.

It started with a California Superior Court judge setting a $330,000 financial condition of release for an indigent and homeless defendant named James Reem. When that order went up for review, the habeas court sent it back down saying that the Superior Court judge failed to properly consider alternatives to detention. So the Judge held another hearing, kept the money condition in place, and declared Reem to be high risk for public safety. On review again, the habeas court ruled that setting a money bond for public safety when you can’t forfeit it for public safety is irrational, and thus unlawful (that’ true because it would fail under any legal theory requiring at least a rational relationship between ends and means.)

As an aside, another guy and I have been preaching this for years. If we can get courts to see that in virtually every state setting money for public safety is irrational, that would leave only flight, and my personal belief is that very, very, very few defendants would ever present an unmanageably high risk for flight.

Anyway, even the least skeptical of us would still guess that after the judge was told he couldn’t base it on public safety, he’d just reset bail and, this time, base it on flight. And sure enough, that’s what the judge did – found Reem to be a significant risk of flight – and so he kept the $330,000 condition in place.

Now here is where normally you’d expect things to end. But not this time! This time the reviewing court actually looked deep into the evidence the Superior Court Judge used to set the money bond based on flight and found that the evidence didn’t meet “minimum standards of reliability.” Holy smokes!  

Three times up, and three times the habeas court finds the Superior Court Judge violated the constitution. In the words of the decision: “Here the state has twice failed to correct the constitutional deficiencies in its order. Accordingly, Reem must be released.”

Some in my circles will call this horrible – after all, it took three times to get to the result. But I’ve been around and I call it progress. At the very least, times are certainly changing.

By the way, the bail industry could care less about cases like this. Reem didn’t have any money for a fee, and he certainly couldn’t cover the entire cost of the bond with collateral. But the industry should care, and reviewing courts certainly do care, and it’s cases like this that will change the legal landscape for money bail. The arguments used to release Reem are the same arguments being used to get rid of money bail in all amounts for all defendants. For every case like Reem that the industry lets go by, or doesn’t tell you about, we’re that much closer to the end of money bail.

Monday, March 5, 2018

Another Big Time Article About the Bail Industry in Maryland

Here's another story about the bail industry in Maryland. Unlicensed bail bondsmen going after money through the very courts they disparage when they don't set money bail. And all this even as the bail company is being investigated for operating without a license.

There are a number of reasons why this industry is on its way out. First and foremost, though, is that it has forgotten whatever noble purpose it had when it was created in 1900. Today, the industry basically calls its clients scum and criminals (even though they aren't convicted). It says they lie about how much money they have. It claims defendants are the most dangerous people on the planet -- all because they didn't pay a fee (you know, all those FREE TO GO stories on Facebook, even though "free to go" is also known as freedom and liberty under our Constitution).

You know what I'm talking about -- "They're not in there because they're poor -- they're in there because they broke the dang law." That's the kind of leadership and strategy coming out of the main bail organizations. ABC's lobbyist can always get another job. After the bail industry, there'll be some other big deal thing that he can argue for.

At the end of the article it says, "Advocates will need to delve more into the ways bondsmen do their work in practice." Better hope they don't.

Oh, and if you want a bit of perspective, go onto the Pretrial Justice Institute and just look at all the articles and stories in the news about bail. About 3% of them get sent to you through ABC, AIA, and other bail organizations. Read the other 97%, though, and you'll see where this whole thing is going.

Friday, February 23, 2018

Bail Insurance Companies Being Fooled By Their Own Lobbyists?

I don't normally write about the same thing twice in a row, but I think I will due to ABC's "breaking news" trumpeting a win in the Harris County case. So I have two things I want to direct right at ABC.

First, ABC, I know you all think you've pulled one over on the people on our side. Yeah, I know, you argued for the analysis under the 8th Amendment, and you ended up with a revised remedy (that may or may not resemble the full injunction) that kind of looks like that. Well, we ain't fooled. We know all about what the law is, and you won't win -- especially if you start focusing on the state right to bail (you know, the state-created liberty interest). Even your own attorneys knew the limits presented by the state right to bail, so you're definitely history on that one.

Second, ABC, for the benefit of the people who rely on you to tell them the truth (including those insurance dudes who seem bamboozled by the legal talk), did you forget to mention to them all the things you argued that ended up getting slammed by the Fifth Circuit? Sure, now you say, "All we ever wanted was a little procedural due process," but that's not what you argued. Nope. You argued there wasn't even an equal protection or due process claim, only an 8th Amendment claim, and that got slammed. You argued that Younger abstention applied, and that got slammed. You argued for rational basis scrutiny, and that got slammed, too. You argued that all the factual findings (including the trial judge's factual findings that all those wonderful studies you send out to bail agents everywhere were "not credible) were wrong, too, but the Fifth Circuit specifically upheld them. That's a big deal because it's those facts through which you lose a substantive due process or equal protection claim. You gotta know that, right?

Face it. You only said you were for procedural due process once you realized you'd lose on substantive due process and EP. Oh, and I'm teaching people how to beat you on an 8th Amendment claim, so get ready for those, too. Plus, what you're advocating for is a clear violation of virtually every state's right to bail provision, so watch out for that claim as well. Violating the state right to bail provision is what changed New Mexico. Now I realize that New Mexico is sort of a sore subject with you because you were lost through that whole thing. Well, take my word for it. Justice Daniels said judges had to follow the right to bail provision in the constitution, and that directive ended up decimating the commercial bail industry within just a couple of years. Bottom line -- when you stop allowing purposeful detention using money, you don't need money any more for anything else.

When it comes to substantive due process, the claim wasn't even brought. One of these days, though, someone will bring it, and you'll see the end of money bail in quick and decisive fashion. What was brought was procedural due process (which you now apparently like even though 8th Amendment analysis wouldn't have given any), and equal protection. And equal protection is where you really lost. The Fifth Circuit specifically upheld the EP claim, and that's going to ultimately lead to mass release without money. Remember, if you decide two people are treated differently because one has money and one doesn't, the remedy isn't to somehow allow money to keep one in and let another out.

Bottom line, ABC, you argued that Harris County's existing practices didn't violate the constitution, and the Fifth Circuit said they did. Remember your brief in the district court? You said Harris County's current system "far exceeds federal constitutional demands" and that "there is no escaping that the County's bail system is constitutional." You couldn't have been more wrong.

The people on my side know you'll try to settle. But my side shouldn't settle because we'll win everything the more we press on. You're only claiming a win now so that if you settle the people who pay your bills will be fooled into thinking they're not throwing their money away.

Get used to it. The Fifth Circuit opinion found clear violations of EP and procedural DP, and that should worry you because every county in America sets bail like Harris County. It's the beginning of the end of money bail in America, and you can't hide that from your insurance bosses.

You once bragged that having Paul Clement write up your brief was the next best thing to having the Supreme Court itself explaining things. Oops. Maybe not. Money can buy a lot, but it can't buy arguments that work in the federal courts.

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.