Monday, April 21, 2014

Multi-Million Dollar Financial Conditions of Bail

I don't like writing about what I call "aberrational" cases -- those unique cases that make the news but that don't necessarily tell you what is really going on with bail in America. I would much rather talk about a case in which a judge set a $100 cash-only bond that led to the unnecessary pretrial detention of yet another defendant without money. That sort of thing happens all the time, but you just don't read about those cases very often in the news. Instead, the news reports on the aberrations, and when you watch the news for bail issues for a bail blog, you end up reading (and sometimes writing) about aberrational bail cases. Typically, they involve financial conditions in the millions of dollars. I saw two such cases the other day, and each raises similar issues.

The first case involved a 21-year-old San Francisco Giants fan, who set off an M-80 firework at a baseball game against the Dodgers. Nobody was seriously hurt, and the press reported that the defendant had never been in trouble before, but the judge set the financial condition at $2.4 million. Later, when the judge reduced the amount to a "mere" $100,000, the defendant's attorney said he believed the initial amount was simply an overreaction to other violent issues linked to Giants games. Now, I wasn't there, and so maybe the judge who initially set the financial condition had grave concerns about the risk to public safety and flight that were later found to be less concerning. But the paper didn't mention any of those things, and if the attorney is correct, then the financial condition of bail in this case was set for an improper purpose. There are only two constitutionally valid purposes for limiting pretrial freedom -- public safety and court appearance -- and judges are expected to base their decisions about setting conditions with only these two purposes in mind. Conditions set to placate public opinion, to punish, or as a reaction or an "overreaction" to other incidents are unlawful. Don't get me wrong -- the $100,000 reduction may be equally unlawful if set for an improper purpose. It's up to the attorneys in the room to force the judge to make a record as to why he or she is setting a particular condition. In bail, motive matters, and an improper motive can actually be the difference between a constitutional and and unconstitutional bail setting.

The second case is one you have probably heard about. Over a period of years, a Utah mother apparently killed 6 babies shortly after they were born and hid the bodies in her garage. The financial condition of bail in her case? Six million dollars, or, as the news reported, "one million for each baby." Of course it's a horrible and tragic case, but what makes it puzzling, bail-wise, is that the Utah bail scheme appears to allow judges to deny bail altogether for any person charged with capital felony or "a felony when the court finds there is substantial evidence to support the charge and the court finds by clear and convincing evidence that the person would constitute a substantial danger to any other person or to the community, or is likely to flee the jurisdiction of the court, if released on bail." If the court makes this finding, then it doesn't need to go through the somewhat disingenuous dance of ordering the defendant's release but setting the conditions of release so that release is unattainable. Again, I'm not there, but I read that the defendant actually admitted to killing the babies, and so if the judge just had this hearing, her or she could simply deny bail altogether. Following the theme of making sure one has a proper purpose for limiting pretrial freedom, setting a financial condition of bail simply to send a message to the public that the crime is serious would be unlawful. Moreover, setting a financial condition of release with a purpose to detain, especially when the state a lawful process for detaining defendants "without bail," as Utah does, should also be deemed an improper purpose and thus unlawful. There are a number of states in America that have enacted lawful procedures that can be used to deny bail (release) in any particular case. Many judges do not use those provisions because it is simply more expedient to detain someone by uttering some gigantic amount of money. Bypassing those provisions, though, means giving short-shrift to the rights that are being protected by the lawfully enacted processes.

All of this goes to states correctly setting up their "bail" and "no bail" dichotomies so that the right persons will be released or detained pretrial. Multi-million dollar conditions of release are typically symptoms of problems with the dichotomies. It's not necessarily an easy thing to do, but once states figure out how to correctly set up both "bail" and "no bail," I predict far fewer million-dollar conditions of release.            

Monday, April 7, 2014

Beware of Bail Lobbyists "Teaching" Our Students

I just read an article titled, "Bail bondsmen are a thing of the past in Massachusetts." According to the article, the phase-out started with bondsmen corruption, which led to the creation of alternatives to bondsmen, and finally to judges simply choosing not to use them. But it quickly reminded me of a recent You Tube video of a bail insurance lobbyist trying to convince college students why bondsmen are "indispensable" to the criminal justice system. I know lobbyists are paid to spin, but given the disconnect between what this lobbyist said and reality as epitomized in Massachusetts, it's no wonder that people are recognizing that the world might just be a better place without the commercial surety industry.

The lobbyist started by referencing a chapter in an American Bar Association booklet about sureties in which he and another author make the case for for-profit bail bondsmen. In fact, the part in that chapter talking about their worth is relatively new, and was created only recently to muddle the water about what the ABA really thinks about commercial sureties. In the ABA's Criminal Justice Standards on Pretrial Release, the document that was created by criminal justice system decision makers (i.e., judges, prosecutors, defense attorneys, and pretrial experts) and not bail insurance lobbyists, Standard 10-1.4 says that "compensated sureties should be abolished." There are a lot of reasons for this, and any good college student should probably look them up before taking the word of the commercial bondsmen's hired gun.

By tracing bail back to Egypt, the lobbyist implies that his industry has been around for eons. In fact, the commercial surety industry has only been a part of the American system of bail since about 1900. Before that, England and America relied primarily on unsecured bonds administered through a personal surety system, in which profit and indemnification were not allowed. Shortly after the introduction of commercial sureties, we realized that they would pick and choose who to release. That, and their tendency to engage in corrupt activities, led people to actively criticize commercial bail bondsmen as early as the 1920s and eliminating them as early as the 1960s.

Once again, the lobbyist uses U.S. Department of Justice Bureau of Justice Statistics (BJS) data to say that commercial sureties are a better form of release than all other forms. You just can't do that. The BJS itself said that you can't do that, and issued a "data advisory" warning people not to make evaluative statements based on their data because doing so would be incredibly misleading. I know that the bail lobbyists are aware of the advisory because when it came out they complained loudly. Since then, they have simply ignored the warning. You just can't trust the bail insurance lobbyists when it comes to research. There is good research out there, but you won't hear about it from the industry. Someday, if I have to, I'll detail the disturbingly cozy relationship these bail lobbyists also have with some so-called "neutral" researchers. It's fascinating stuff.

Once again, the lobbyist says that a commercial surety release is superior to all others because defendants think that, "they [bail bondsmen] are coming after me." That's not true either. If you don't believe me, ask any cop or deputy sheriff. We did here in Colorado, and for three months we tracked arrests made by 15 or so municipal agencies as well as walk-ins to the court. A whopping one-half of one percent were brought in by bail bondsmen or a bounty hunter. In another study, researchers compared defendants who failed to appear for court on secured bonds with those released on unsecured bonds. After one year, the numbers were equal, indicating that nobody was going after defendants on surety bonds more than anybody else. Yes, there are bounty hunters, and yes, some do make a living at it. But their prevalence has been grossly overstated.

The lobbyist says that people behind the current generation of bail reform are only concerned with helping defendants, which is also not altogether true. The current pretrial justice movement is focused on both "bail," or release, and "no bail," or detention. It is concerned with setting up legal and evidence-based practices so as to maximize the release of bailable defendants (while protecting the public and providing assurance of court appearance) and the detention of nonbailable defendants. Overall, it is concerned with public safety, court appearance, and appropriate placement of pretrial defendants. It's just that money gets in the way of all of this, and so we are moving away from it. If you move away from using money, you are bound to have bail insurance lobbyists come up with their own distorted reasons to explain what we are doing.

In a related statement, the lobbyist says that there's no such thing as a low risk defendant who can't get out of jail for lack of money to pay a bail bondsmen. That statement even defies logic. The Department of Justice estimates that nearly 90% of defendants held for the duration of their pretrial phase cannot post the monetary condition s of their bonds. Here in Colorado, we once did a study where we weeded out all the defendants who might have holds, etc., and other things getting in the way of release, and then we walked cell to cell to ask them why they weren't out. The reason was money. This was true in about 80% of the cases, and a bunch of those bonds were for less than $100. Now, this particular lobbyist qualifies things by saying that if a person can't get out, he must be a high risk and thus shouldn't get out. The big problem with this statement, of course, is that bondsmen don't base their decisions on risk. They base them on the defendant's ability to pay the fee and collateralize the bond.  They call a defendant who can't pay "high risk." I call him a defendant who can't pay.

The lobbyist then says that he has tried to "extend an olive branch" to work together with the various people behind the current movement of pretrial reform. Really? Compare that to the statement I read in the agenda to a recent national bail bondsmen conference, which said, "Next month's conference will give you MORE help in fighting pretrial in your state." In fact, back about three years ago, this very bail insurance lobbyist showed up at a County Commissioner Meeting in my county to discuss de-funding our pretrial services unit. I didn't detect any spirit of cooperation on that day.

Finally, the lobbyist cites to a study by the Texas Public Policy Foundation. All I can say is, look this group up through Source Watch to see what they are really up to. They are connected to big corporations, and ALEC, which is closely tied to the bail insurance industry. You know, when I was in college I was extremely suspicious of people older than me -- for good reason, it turns out -- but I held out hope that when our generation got older we wouldn't intentionally mislead anyone who came after us. Unfortunately, that didn't happen. Don't trust anyone, even your professors. Question everything. Look everything up.

The bail insurance lobbyist was the first speaker in what is supposed to be a "criminology lecture series." I would hope that in the future they will get some actual criminal justice types to speak to students. Having a bail lobbyist speak on criminal justice is not much better than a lecture from the guy who prepares and sells sandwiches to the jail. Students being students, I am certain that they were smart enough to see the talk for what it was -- a sales job. At the very least, the students likely now understand a bit how an entire state like Massachusetts can easily decide that this industry is far from indispensable.