I haven't posted for a while, primarily due to it being the legislative season in Colorado. For those of you in bail, you know that legislative season means bondsmen, insurance companies, and various trade groups who make money at bail are busy creating new bills hoping to make even more money at bail.
I have worked with legislation all over the country, and I have noticed that nearly every bill designed by the for-profit bail industry has three or four things in common. First, nearly every bill is designed to take away judicial discretion whenever possible. That's because when judges actually use their discretion at bail, they are likely to choose not to use a commercial surety. There are a lot of reasons for this, which range from bondsmen declining to help many defendants (the ones without money), the bondsmen's lack of concern for public safety (they don't lose money if their client commits a new crime, only if he or she doesn't show up for court), and the fact that the bondsmen's core values simply differ from judges and others in the criminal justice system (they care about money, not necessarily about reducing harm or victims).
Second, nearly every bill is written to limit what many call "personal recognizance" (PR) bonds and some call release on "own recognizance" (OR). Again, this is because those types of release don't make the industry any money. Limits on PR or OR represents an antiquated view of bail in that they focus on only one single condition of release -- money -- over all other conditions. You rarely see the bail industry running bills to limit the use of drug testing or GPS monitoring. You really only see them trying to reduce the things that keep them from making money. A lot of times, that's release on PR and OR.
Third, nearly every bill will include some language that hinders the use of pretrial services supervision. Pretrial services programs are entities designed to help judges figure out which defendants are too risky to release, and they provide supervision for those defendants who aren't too risky. Judges like the programs because they're neutral, they supervise for public safety and court appearance (remember, bondsmen don't care about public safety, only court appearance), and they typically take on everyone -- i.e., they don't keep you in jail simply because you don't have any money. The commercial bail industry rightfully sees these programs as direct threats to their business, and so they do what they can legislatively to mess them up.
Fourth, and this is when the industry really tips its hand, many times the bill will be written to set minimum financial condition amounts so that the bondsmen can be assured that they will make a decent profit. It's not enough to tell a judge he has to use commercial sureties and that he can't use PR or OR bonds, because the judge might -- heaven forbid -- still set a commercial surety bond at only twenty five dollars or something. How do you expect good businessmen to make any money with that going on? The industry needs financial conditions in the $10,000 to $100,000 range. But not too high, as one bondsman in California once explained, because if it's too high the bondsmen might not be able to write the bond either. Too low is no good, and too high also is no good. No, we need amounts in a certain range. If only there was a law that forced judges to ask bondsmen what the amount should be in any given case. Maybe next year.
From the beginning of bail until about 1900, England and America used primarily unsecured bonds (money only due and payable by a defendant on the back-end only if he or she didn't show up for court) administered through a personal surety system (people who were not allowed to make money at bail and could not even be indemnified for any loss). Starting in about 1900, America switched to primarily using secured bonds (whereby a defendant or his family must typically pay something on the front-end just to get out of jail) administered through a commercial surety system (people who are paid for the "service" and indemnified against any loss). This relatively new way of doing things has failed miserably, however, and is in need of reform. We have known this since about 1920, but we have a whole bunch of people who make a lot of money in bail that are hell-bent on making sure that the money doesn't dry up. Those people aren't just bondsmen, who I personally like. They are often lawyers and lobbyists for big insurance companies, supported by slippery black-bag organizations like ALEC, who spend all of their time trying to get lawmakers to make changes to help them out. ALEC is a whole other story, and I suppose I'll write about it soon enough. For now, it should be enough to tell you that if you are a rational and thinking person, and if you don't own stock in some bail insurance company, you should probably be against anything that ALEC is promoting concerning bail.
Like I have written before, you can't fault corporations from trying to make money -- that's what we tell them to do. In fact, our laws are structured so that if someone heading up a corporation doesn't make money, we can kick him or her out for breach of their fiduciary duty to make money. Still, we can be vigilant in watching when bills are introduced to make sure they serve some public policy beyond just making corporations money. This is especially true in criminal justice, and, more specifically, bail.
Anyway, that's my excuse for not blogging. Yet again in Colorado, we all had to stop everything and fight a bill written by the commercial bail bond industry. It was pretty easy to spot, though. It limited judicial discretion, put limits on PR bonds, tried to mess up pretrial services programs, and set minimum amounts for certain bail bonds. You know, the usual stuff.
