Thursday, December 26, 2013

Bail Insurance Companies and the Arnold Foundaton Research

The Arnold Foundation has released some fascinating research using big data-sets to help further pretrial justice. If you want to read about the research, go to:

I’m going to talk about only one of the research papers because the commercial bail insurance industry has already misinterpreted it for their own gain.

The Arnold researchers, using some really sophisticated statistical analyses, demonstrated that lower risk (as determined by the current Kentucky pretrial risk instrument) defendants detained for more than 24 hours were more likely to fail to show up for court and to commit new crimes both short and long term. This is an important finding that leads us to try to persuade judges to do everything in their power to release a lower risk defendant once that defendant is deemed safe enough to be managed within the community. Since money tends to detain and to prevent release of bailable defendants, doing things like setting a surety bond will actually increase the risk to public safety and court appearance whenever that type of bond delays or prevents release. And, of course, those types of bonds both delay and prevent release.  

By the way, I recently reported on a study by Dr. Michael Jones showing that there was no difference in public safety or court appearance rates when judges used unsecured (having to pay money only if the defendant fails to appear) versus secured (having to pay money up-front in order to get out of jail) bonds. Thus, these two studies together should guide judges naturally toward using unsecured bonds whenever those judges think that money is an appropriate condition of release. Personally, I don’t think money is ever appropriate, but for those judges having a hard time with that idea, using an unsecured bond at least gets the defendant out of jail quickly – thus avoiding the deleterious effects of short-term detention – and at no cost to public safety or court appearance rates.

I think the bail insurance company lobbyists recognize this important coupling because now they are trying to pick apart the Arnold study. Basically, the bail insurance companies make a lot of money when judges set surety bonds and are content to wait around while defendants take a week or more to come up with the money they need to get out of jail. That is, essentially, one of the biggest problems with a secured bond system administered through commercial sureties: it leads to people taking longer to get out of jail, and some people never get out at all for lack of money. Now it looks like keeping people in jail for even those short periods of time is messing up them and society as a whole. Really, we didn’t need a sophisticated study to tell us that.

The purpose behind limiting someone’s pretrial freedom is court appearance and public safety – not just court appearance as the bail insurance companies say. Moreover, bail never means any kind of “guarantee,” which is what the bail insurance companies appear to be saying as well. The United States Supreme Court has been clear in saying that all we can expect from pretrial release is “reasonable assurance” of any particular outcome, such as public safety or court appearance. There are no guarantees in bail – risk is inherent and, in fact, necessary to our very democracy. Saying that a surety bond is a guarantee of court appearance not only misapprehends the foundations of bail, it is incredibly misleading. In fact, a surety bond doesn’t even give us reasonable assurance.

If I were in the bail insurance business, I would stop trying to pick apart the Arnold study and start trying to figure out how to change my business practices so that defendants deemed safe enough for release would at least get released quickly, even if that meant I might not make as much money. Any delay in releasing a lower-risk bailable defendant is wasteful and ineffective. Now, thanks to the Arnold researchers, we see that it’s also dangerous.