Tuesday, May 27, 2014

New Jersey Bondsmen Abuses

The New Jersey State Commission of Investigation recently released a report documenting various abuses in the for-profit bail bond industry. You can read the press release to the report here: http://www.nj.gov/sci/pdf/Press/SCIPressReleaseBail.pdf.

The report is admirable, and likely very helpful to those in New Jersey seeking pretrial justice and bail reform. Even so, there are a few important things that the reader should note.

First, bail bondsmen abuses involving how they run their businesses are nothing new, and they still happen practically everywhere you go. Indeed, ever since we Americans switched from a personal surety system to a commercial surety system in about 1900, we have been steadily documenting bail bondsmen abuses. Around 1922, we saw our first exhaustive report on bail (by the highly regarded authors Roscoe Pound, Dean of Harvard Law School, and Felix Frankfurter, future U.S. Supreme Court Justice), which said that the surety system was flawed, due in great part to bondsmen abuses. Indeed, these two gentlemen called bondsmen "disreputable parasites," and advised of ways to avoid them. Since then, bondsmen abuses have led whole states to abolish the industry, and nearly every country except the United States to refuse to let them in. It has been harder in recent decades to deal with bondsmen abuses, primarily due to their partnerships with bail insurance companies and the highly paid lobbyists that they have hired to turn our attention elsewhere. The fact is that, historically speaking, bail industry abuses by themselves have been enough to eliminate bondsmen from criminal justice systems with no ill effects. Nevertheless, bondsmen abuses constitute only one of about twenty better reasons for why commercial sureties and the insurance companies who support them should be eliminated from all other justice systems. We should remember these things before we focus too hard on recommendations for reforming an industry that perhaps shouldn't even exist.

Second, the report's focus on "privately negotiated discount bail-bond deals" is misplaced. The report implies that if a judge sets a bond at, say, $10,000, and a bondsman makes a deal with a defendant to charge only, say, 1% of the amount rather than the customary 10%, then that deal somehow undermines the judge's order and endangers the public by "putting serious offenders back on the street for a few hundred dollars or less." This misunderstanding of the effects of money surrounding both judicial intent and public safety is unfortunate. Money has nothing to do with public safety, and the only way that money as a condition of release can keep people safe is when it is high enough to detain. Of course, using money to detain isn't necessarily legal, which is why the issue is more complicated than just trying to fix the bondsmen -- that's the judicial intent part. The people in New Jersey currently working on bail reform (at least those to whom I have talked) understand all of this, which is why they're crafting both constitutional and statutory provisions to allow for the fair and transparent detention of high risk defendants based on risk. Money at bail interferes with both release and detention, and fully understanding how that happens -- no matter how high or low the amounts -- is the key to bail reform in New Jersey and elsewhere.

Third, the people of New Jersey should not fall for the notion that if they simply move forward to fix bondsmen abuses, then they can achieve pretrial justice. That's simply not true. Bail reform in New Jersey involves creating an appropriate and lawful "bail/no bail" dichotomy and then adopting legal and evidence-based practices to correctly implement both bail and no bail (release and detention) using risk. It is quite likely that such reform will leave no place for money, let alone commercial bail bondsmen, no matter how much industry oversight is created.

I would have liked to have seen the report discuss bail as a mechanism of release, rather than money, especially since the New Jersey Supreme Court has equated the right to bail with the right to pretrial liberty. Bail reform in America means knowing certain fundamentals of bail. It means knowing how to use terms and phrases correctly. It also means understanding the pretrial research, including the research on money. And it means knowing that bondsmen abuse is just one of those things that's likely to happen -- indeed, it has always happened -- whenever you allow profit into the justice system.

Thursday, May 15, 2014

Mother Jones Bail Story

If you go to the Mother Jones website -- at http://www.motherjones.com/toc/2014/05 -- and sign up for free, you can read the new article by Shane Bauer with the semi-spoiler title of "Lobbyists, Guns, and Money: Inside the Shadowy and Very Well Connected Bail Bonds Industry."

I wrote a blog this morning with my own take on the subject, but when I re-read it, it seemed quite negative, and I'm trying to be more positive about everything -- even bail insurance lobbyists. Shoot, I did it again. Oh well, I've deleted that blog and promise to do better in the future.

You can read Shane's article and come to your own conclusions.