Bail Agents, This One’s For You

Well, I’ll get right to it. In my last post – which I thought might be my last post – I said I might come back if somebody made me mad. And guess what? Sure enough, somebody did.

No doubt you can guess who. Yes, that’s right, it was a bail insurance company lobbyist, who insisted on going down to New Mexico and trying to trash a project I was involved with years ago here in Colorado. It didn’t work, of course, because the people in New Mexico called me and a couple of others here in Colorado and we told them the truth, something that the insurance lobbyist probably had a hard time conveying in his presentation. 

Bottom line is that I’m coming back, and I’m going to go at this thing full time. Bail agents, you should realize by now that the insurance companies are doing you no favors anywhere in America. By rehashing the same tired and discredited arguments and by misrepresenting the law and the research to keep the status quo, the insurance companies are – perhaps unintentionally – sealing your fate. 

Here in Colorado, everyone can point to the single event that triggered all of us getting together to change bail. It was when an insurance company lobbyist came in from out of town and did what he was paid to do – keep the money flowing to the insurance companies. The problem is that by doing so, he turned people against everyone involved in commercial bail, including you bail agents. The insurance companies are doing the exact same thing today in other American states, and unless those companies radically change their tactics, you can bet that bail agents simply will not exist in any form in America in the next 10 years.

I used to think that the bail insurance companies might ultimately see the real issues and change their strategy to actually help you agents, but now I see that they are too consumed with the free money (that you all give to them) to do you any good. The future of bail and no bail in America simply does not include the kinds of high dollar amounts that seemingly require insurance company backing. And because they don’t belong in any pretrial future that I can think of, insurance companies will continue to argue to keep things the same. By doing so, however, they’ll continue to lose. And as they lose, they’ll most definitely take you down with them.

As a bail agent, I know that you rightfully take some pride (as we all do in pretrial justice) in knowing that you are helping to uphold the rights embodied in both the states’ and the federal constitution. To stay in such a noble pursuit – to be able to feel the same sense of constitutional pride for the next 100 years – you simply must see the insurance companies for what they are and what they are not. Simply put, they are the method of your demise. They are not your friends. 

The Golden Rule and Bail

I’ve been doing bail pretty much full time for about eight years now, and so I’ve decided it’s time for a bit of a break. But having Pope Francis come to America last week made me realize that I couldn’t take that break without one last post to talk about the Golden Rule and bail.

Yesterday I wrote five pages on the Golden Rule and bail, and then I realized that the more I harped on people for not following the Golden Rule, the more I wasn’t following it myself. So let’s leave it at this. If you just follow the Golden Rule at bail, nearly everything else will eventually fix itself. If you don't understand the Golden Rule, or can't seem to follow it even when it's pointed out to you, then you need to get out of criminal justice. 

I’ll point out one specific thing, however, that someone should be able to stop immediately. One of the bail insurance companies – you know who you are – makes fun of how particular defendants look in their mugshots every week. I don’t think you’d like anybody making fun of how you look, so cut it out. I mean, beyond the fact that it’s just plain mean, these people are your potential clients, right?  

Okay, that’s the end of the sermons. A lot of really great people have made their careers working in the important field of pretrial release and detention, but I was never meant to stay all that long. Don't make me mad, though, or I'm liable to come back. :)   

The Untold Cost of Eliminating Money Bail – A Lot More Money?

The latest from the bail insurance companies says that people like me don’t like to talk about the “cost” of reform. Not true, my friends – in fact, let’s talk about it now.

I’ll start big picture. Basically, the insurance companies say that commercial bail costs less than anything else. The problem is that when they say this, they leave a lot out, which is why we’re having a bail reform movement to begin with. First of all, they leave out the fact that private bail companies only care about court appearance, not public safety, and yet judges are required to care about both of those things when they set bail. In virtually every state, you can only forfeit a commercial surety bond for not showing up for court. If a defendant commits a new crime while on release, the bail agent and insurance company don’t have to pay anything and they get to dump the defendant as a client. In fact, if the judge plays along and sets another commercial money bail bond, then the bail agent and insurance company can just do the whole thing over again. I often say that the best client that the bail industry has is one who always comes to court but keeps committing new crimes.

Commercial surety bonds have absolutely nothing to do with public safety. Just ask the people of Washington State, who had to change their constitution because a guy named Maurice Clemmons got out on a commercial surety bond, tried to rape two small girls, and then shot and killed four police officers. So what’s the cost of not even caring about public safety? Really, this is the biggest thing the bail industry has to deal with, and they just don’t have an answer for it.   

Because we keep pointing this out, you’ll hear the insurance lobbyists floating some incredibly strained logic trying to convince people that they care about public safety like, “Well, we make sure they come to court, and so long as they’re coming to court, they aren’t committing new crimes.” Oh, yeah, now I remember. That’s exactly what the insurance company lobbyist said in the blog I just read. He said, “When people show up for court, they are not out in the community committing additional crimes.” Man, that’s just messed up. Again, commercial surety bonds have nothing to do with public safety. And if you argue for one or set one, then you look like you don’t care about public safety either. That’s it.

The second really big thing they leave out is that bail agents and insurance companies don’t want to have to help someone bond out of jail. Basically, they want to pick and choose who gets out of jail, and they want to pick and choose mostly based on how much money people have. In the end, that one thing – the ability to turn people away for lack of money (or really for no reason at all) – has led to the mass incarceration of pretrial defendants ever since we created the commercial surety industry in 1900. And the costs associated with that are astronomical. You’ll never hear an insurance company lobbyist compare the cost of being released through a public or nonprofit pretrial services agency versus the cost of staying in jail because some bail agent decided not to help. The cost of jail can be as much as twenty times the cost of pretrial services agency supervision in the community.  

The third really big thing they leave out is that when there’s a public sector release system in place, the bail agents and insurance companies really, really like to have someone released on a commercial surety bond along with the public agency supervision. That way, they don’t have to do anything except collect money. This is commonly known as double-supervision, and it wastes more money in America than we can even estimate.    

The fourth and final really big thing they leave out is that commercial bail agents and insurance companies simply have no way of determining a defendant’s risk for failure to appear for court or public safety. They go by their gut, and often you’ll hear them say things like, “Well, since that guy can’t afford to pay me, he must be a risk to public safety so it’s a good thing that he’s in jail.” Part of the job of pretrial services agencies and programs is to assess defendant risk, lately through the use of validated pretrial risk assessment instruments that use sophisticated statistics to determine the likelihood of returning to court and not committing new crimes. When they use these instruments, they can help judges match supervision needs to risk, and that saves an inordinate amount of money. I once heard a bail insurance lobbyist say that he didn’t believe in these risk instruments – that he actually believed it was a better system to rely on a bail agent’s gut instinct. Can you imagine? An insurance guy who doesn’t believe in actuarial risk assessments, which are the very things that those same insurance guys use to determine your health, life, and car insurance.

The rest of the insurance blog tried to piece together odds and ends designed to show that it’ll cost a bunch of money to dump the old system. Now, remember, the system they don’t want us to dump is the system that doesn’t care about public safety, that doesn’t care if defendants get out of jail, that doesn’t care if it wastes resources, and that has no way of determining or responding to actual defendant risk – again, they just left all that out. So here are a few things that the blog said.

First, it said that New Jersey was presented estimates about how much a pretrial services agency approach would cost the state. Well, guess who presented those estimates? Right. It was the bail insurance companies, which used an incredibly inflated estimate of the D.C. pretrial budget and extrapolated that budget to the entire state of New Jersey. Yes, estimates through testimony were presented, but nobody in New Jersey bought it. Even with that testimony, that state passed changes to its constitution and statute designed, among other things, to reduce, if not, eliminate reliance on the commercial bail system.

Second, it used the same D.C. pretrial budget to say that it would cost some astronomical amount in some other city. The insurance companies have been using this argument for years now, and it simply isn’t working. Everybody knows that the D.C. pretrial budget is bigger than everywhere else. That’s why, after the insurance companies point out the D.C. budget, people like me show decision makers about twenty other pretrial services agency budgets, from all over the country, that demonstrate how you can run an effective pretrial services agency or program for nominal costs. A lot of places are even using probation officers to do the supervision, and we already have probation in virtually every jurisdiction in America. 

Third, it said that states and counties benefit from the taxes and forfeitures inherent in a private bail system. Well, if I ever actually saw an insurance company pay on a forfeiture, it would be a first. In a recent Mother Jones article http://www.motherjones.com/politics/2014/06/bail-bond-prison-industry, one bail insurance lobbyist said his company had been in business for 107 years and hadn’t paid out a single claim. And just check your statutes. If they’re like everyone else’s, you’ll see how the bail industry has helped enact multiple hurdles, extensions, and exceptions, all to keep them from having to pay forfeitures. By the way, insurance guys, if you wonder into a law library, you’ll also see that setting bail to make money is unconstitutional, so saying that you like a bail system that makes money for the government neglects the fact that such a system would actually be unlawful for that purpose. I wouldn’t focus on this argument too hard, because the tide is turning in America away from profiting off of flaws in the justice system.    

The blogger ends by saying that the comparison between release on a commercial bail bond and release to a public or nonprofit pretrial services agency or program isn’t even close, and he’s absolutely right. Commercial bail (as it’s done today) is so far off that it needs to go. There’s probably a place for what I call “private pretrial,” but that’s not going to look anything like what we do today, which is to rely on huge, arbitrary numbers, and which seems only to exist to line the insurance companies’ pockets.

So, you see, people like me don’t mind talking about cost at all. I just don’t do it all that often because most of the improvements I’m talking about doing are for reasons that include fairness, rationality, common sense, and following the law. Ask some bail insurance company lobbyists to tell you the cost of not following the constitution, the cost of ignoring the research on risk assessment and mitigation, the cost of unnecessary pretrial detention, or the cost of allowing extremely high risk people out on a surety bond simply because they can pay. Those are the costs that matter, and those will be the costs that the bail industry won’t want to discuss. 

Bail Agents: Insurance Lobbyists Are Not Your Friends, Part III

Earlier, I wrote parts one, http://timschnackebailbasics.blogspot.com/2015_06_01_archive.html,

and two, http://timschnackebailbasics.blogspot.com/2015/07/pennsylvania-lawmakers-back-commercial.html, of this series, and here is number three, a classic example of how the insurance companies are ruining the reputations of bail agents everywhere.

Recently the new guy over at the American Bail Coalition – the big bail insurance lobbying group that wants to keep everything the same at all costs – wrote an opinion piece in the Albuquerque Journal about New Mexico bail reform. In that piece, he wrote three main things that are simply wrong, that are quickly refuted, and that leave people in New Mexico rightly thinking that the entire bail industry is trying to hoodwink them.

First, the author cites to a study in a Chicago economics journal to say that surety bonds are better than any other form of release. I’ve written about this before, so I’ll just summarize. The Bureau of Justice Statistics (BJS) put out a bunch of data about pretrial release. Some people took that data and wrote a couple of papers saying that it showed that certain types of release – like release on a commercial surety bond – were better than other types. The insurance companies went batty, running around the country saying that the data and the papers proved that they were best. Then BJS put out a paper saying, “No, no, you can’t use our data to make comparisons of release types like those made in the papers – it would be really misleading to do so for a bunch of reasons.” The insurance companies complained mightily, saying that the whole thing was unfair and rigged against them. Then those companies went silent. And then, after six months and as if nothing ever happened, the bail insurance company lobbyists went right on citing the studies and data for the exact thing that they weren’t supposed to cite them for. You see, they’d figured out that nobody was going to do anything to them if they misled people, so why stop?

So the Chicago paper (and others like it) continues to get cited by the bail insurance companies even though it’s wrong and misleading to do so. The insurance companies also get bail agents to try to pass it out in various states. What’s the problem? The problem is that right after they pass it out, someone, like me, usually explains the whole data thing, and the bail agents look like liars.

Second, the author mentions that New Jersey’s efforts at bail reform are unaffordable. During passage of that reform, literally the only people who made this claim were people who made money from the current system – the bail insurance company lobbyists – who used inflated inferences about certain budgets that nobody else in New Jersey even believed. Bail reform passed in New Jersey for a number of reasons, one of which was that the reforms were going to be extremely cost-effective, not more expensive.

Third, the author cites to Mesa County, Colorado, and his stuff about that jurisdiction was so wrong that Mesa County and its Chief Judge both felt compelled to issue a response. Think about it – a little county in Colorado has to correct what a national insurance group says to people in Albuquerque, New Mexico. It’s sad, but it’s needed. Frankly, if it happened every time the insurance companies made bogus claims, all you’d ever read is corrections.  

Finally, the author shows a fundamental misunderstanding of bail in America generally and bail in New Mexico in particular. Historically and legally, bail is a process of release with conditions designed to provide reasonable assurance of public safety and court appearance. The New Mexico Supreme Court, in State v. Brown, said essentially the same thing both in a footnote – where the court wrote that bail as defined in New Mexico could be effectuated by release on personal recognizance – and at the beginning of the opinion – where the court equated the right to bail with the right to be released pretrial. When the ABC insurance lobbyist says that “bail works,” what he’s trying to say is that “commercial surety bail works,” and we know from history that commercial surety bail has never worked. Equating the term “bail” – a right in so many American state constitutions – with a right to release to a for-profit bondsman, is a fundamental error that is amply illustrated by the fact that virtually all state constitutional right to bail provisions were drafted long before commercial bail even existed.  

How does all of this affect bail agents? Well, as you probably know by now, the public doesn’t distinguish between insurance company lobbyists and bail agents. To them, you’re all in the same bucket, so when an insurance lobbyists misleads them, they take it out on the bail agents. Right now, Mesa County and a bunch of other people (including me) are explaining to everyone in New Mexico why this opinion piece is based on wrong information, and the people of New Mexico won’t distinguish between ABC and the bail agents who actually have to work for a living. This is really the first thing this guy has written since being hired by the insurance companies, and he’s already managed to damage the reputation of bail agents throughout New Mexico. You agents will eventually wonder why the great piece by ABC didn’t help you, but now you know. It’s wrong, and we’re telling everybody in New Mexico why it’s wrong.

Remember what I’ve written before in this blog. There may be a place for private pretrial in America’s system of pretrial release and detention, but there’s no place in the future for bail insurance companies. They know that, so they’re fighting, and they’re going to keep trying to get you to fight with them. It’s really their only way to continue making all that money. This is your chance to morph into a private business model that might actually benefit the courts and the general public. But as the Albuquerque Journal piece amply demonstrates, you’ll lose that chance if you rely on bail insurance companies to help you. 

Sandra Bland: Her Bail Amount “Was Not Significant”

No, I didn’t say this – a bail insurance company lobbyist did. The quote, in full, is actually, “The issue of bail had nothing to do with this person’s suicide, in my opinion. The amount was not significant and the family was working with a bondsman to post bail.”

This gives you a bit of insight into the people behind our traditional money bail system. Bail insurance company lobbyists could really care less about the humans who bear the brunt of a broken system of bail in America. Let’s break this quote down.

“Not significant?” Well, it kept her in jail, so I think that’s pretty significant. The most interesting conversations I have with commercial bail people happen when they talk about amounts that are “significant” or “reasonable.” Some time ago, a commercial bail guy came to our local county justice meeting and, with a completely straight face, said, “The other day I saw a judge set bail at $50,000, which is reasonable, but another judge set another bail at only $500, and that’s just wrong.” To a bail insurance company lobbyist, amounts are reasonable when they can make money off of them, and they’re unreasonable when they can’t. And only an overpaid lobbyist could ever say that a $5,000 financial condition isn’t significant.  

“Working with a bondsman?” Well, there’s an article out there saying that some bondsman actually called Sandra’s mother, but that was it. I assume the phone call went something like this: “Your daughter’s bail is $5,000, so to get her out of jail you’ll have to come up with a $500 non-refundable fee for me and then put up some collateral to cover the rest.” These kinds of conversations happen every day across America, and they’re why it takes an average of 10 days for people to bond out through commercial sureties. And in those ten days, research has found, a lot of really bad things can happen.

“The issue of bail had nothing to do with [Sandra’s] suicide?” The bail insurance guy says that “there were clearly other issues [going] on in this person’s life.” What kind of issues? Everybody has issues going on in their lives, and no matter how significant those issues are, you can bet that if the person is stuck in a cage, incarceration is issue number one.  

This is the problem with bail insurance companies – the groups who lobby hard to keep the commercial money bail system alive in America – they simply don’t have any compassion or common sense. It’s a problem that we’ve had with this industry ever since we created it in 1900. And it’s a big problem in Texas, which is kind of an enclave for bail insurance companies and the lackeys that these insurance people hire to try to muddle and spin the tragedy of money bail.

Let’s face it. There’re at least three big issues that need to be addressed concerning the death of Sandra Bland: (1) her arrest; (2) the nature of her detention; and (3) the money bail that kept her in jail. Because bail insurance companies make money on number three, they’ll be hoping that everyone – including you – will focus only on numbers one and two.

Don’t do it. 

Sandra Bland and the Tragedy of Money Bail

I’ve been around my share of death and dying, and so I can’t begin writing about such a tragic event as this without first offering my prayers to the friends and family of Sandra Bland. I’m truly sorry for your loss, and to the extent that God can use this horrible event to open the eyes of the ignorant and to save others, then I hope that you’ll understand my need to write about it.

A lot of people have written about possible law enforcement and jail staff abuse and missteps, but let’s be clear here: this case is also about money bail and the use of an insidious hallmark of the money bail system – the bail schedule.

In America, we have a system of justice that requires and thus includes gatekeepers – judges – who, through their neutrality, objectivity, and oath to follow the constitutions of their states and of the federal government, are asked to right wrongs by balancing the actions of the government with the liberties afforded to America’s citizens. At the very beginning of a criminal case – any criminal case, and especially a criminal case that maybe shouldn’t be a case to begin with, judges must hold a prompt first appearance, find probable cause for the arrest, and set bail. In Texas, people have a right to bail, except in limited cases, and the U.S. Supreme Court has equated the right to bail broadly as “the right to release before trial,” and “the right to freedom before conviction.”

Criminal justice may never be arbitrary, and to keep things non-arbitrary, we use standards. By having a set of standards and applying those standards to each individual defendant, we make sure that criminal justice practices and punishments remain non-arbitrary and thus lawful. The best example of this is in death penalty jurisprudence. The Supreme Court has said that the death penalty may never be arbitrary, and so we have cases articulating how to create lawful standards so as to separate those defendants who might receive that penalty from those who might not.

The same is true in bail, which is why the U.S. Supreme Court in 1951 said that, “because the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant.” And when the American states read this quote, they knew exactly what the Supreme Court was talking about. Accordingly, across America, states inserted into their bail laws what I call “individualizing factors,” which typically require judicial officers to look at each defendant using various criteria to determine bail. Texas, which has a pretty lousy bail statute, nonetheless has a provision based on individualization. It’s not as good as other states, but it nonetheless says that whenever a judicial officer sets the amount of bail, he or she must take certain things into account, including community safety based on the alleged crime, the defendant’s financial ability, and the nature of the crime – all factors that can only be ascertained through an individual assessment of the defendant. The statute also says that “the power to require bail is not to be so used as to make it an instrument of oppression,” but that’s a whole other blog.

Instead of following this statute, however, apparently the four justices of the peace in the county in which Sandra was arrested decided to create what we call a “bail schedule.” Bail schedules are documents ranging from one to 100 pages that typically include only a charge and an amount of money corresponding to that charge. Under a system based on a bail schedule, all defendants, despite whatever individual characteristics they have, pay the same amount to get out of jail. I’ve written about bail schedules for as long as I’ve been studying bail, and I believe that they’re unlawful for a number of reasons and under a number of legal theories.

We’re beginning to see that the use of secured money conditions (requiring people to pay money in order to get out of jail) is unconstitutional. But setting those conditions pursuant to a bail schedule is what I call “super-unconstitutional” (a word that’s perhaps only fitting in the world of bail). By using a schedule in the case of Sandra Bland, the justices of the peace ignored their own statute, ignored the U.S. Supreme Court opinion emphasizing the need for individualized standards, and even ignored our well-accepted notion that criminal justice may never be arbitrary.

And because of that willful ignorance, Sandra Bland sat in jail when she didn’t have to.

The government claimed that Sandra violated the law and so it was ready to run her through the machine to prove it to be true. But the justices of the peace violated the law, too. What are we going to do about them? 

Pennsylvania Lawmakers Back Commercial Bail?

I should call this “Bail Agents: Insurance Lobbyists Are Not Your Friends, Part II,” as it illustrates exactly what I wrote about last time.

In a recent blog, a bail insurance company lobbyist wrote that by enacting SB 397, Pennsylvania lawmakers somehow showed support for commercial bail. I don’t think so, and if you read it, I don’t think that you’ll think so either. In fact, everything I read indicates that Pennsylvania was trying to add regulations to the bail bond industry “by requiring that all bail bondsmen play by the same rules,” according to the sponsor, Rep. Bryan Cutler. Clamping down on an industry through additional regulations isn’t really “backing” it.  

So what did the legislation do, and why do the insurance companies like it so much? Well, the biggest thing it did was to require all bail agents to have insurance company backing – or, as the lobbyist put it, “to be appointed by an approved surety insurer.” God forbid there should be any bail agents in Pennsylvania without insurance company backing, and so this bill fixed that. The whole thing is a pretty good deal for the insurance companies, and it might be a good deal for bail agents and the people of Pennsylvania except for one thing: having an insurance company back a bail bond doesn’t do anything for anyone because the insurance companies never pay any losses.

They even admit to this. In fact, the bail insurance companies are so confident about their place in the system that one lobbyist recently bragged to a reporter for Mother Jones that the lobbyist’s company had been in business for 107 years and never once – NEVER ONCE – paid a single forfeiture. So bail agents are required to have insurance company backing, but is there really any backing if they never pay? It’s free money for the insurance companies, which is why they’re fighting so hard to keep it rolling in. 

So, then, if insurance companies don’t pay, who does? Well, defendants, defendants’ families, and bail agents pay, that’s who. If you’re a bail agent, you already know that, just like you know about buildup funds. In the surety bail system we have today, bail agents do everything, they’re on the hook, and they’re expected to drop bags of money on the steps of the insurance companies or face the consequences. If it looks a bit like the Godfather Part IV, it is. Deep down, bail agents know that they don’t need any help from insurance companies, no matter what those companies tell the state legislatures.   

So don’t let these lobbyists tell you that SB 397 did anything good for bail agents, and for goodness sake, don’t let them tell you that the whole thing showed that Pennsylvania “backs” commercial bail. This is the twisted world of the bail insurance companies, which help lawmakers put restrictions on bail agents designed to make the insurance companies money, and then try to sell it to bail agents at the various conventions. Your honor, I refer to the case of lipstick versus pig.

Bail agents, this is your one and only chance. If you really want to have a place in the world of American pretrial release and detention – if you truly believe in private pretrial partnerships with public criminal justice systems – don’t listen to the insurance companies. The future of American pretrial release and detention, public or private, does not have a place for bail insurance companies. They know this, and so they’re going to fight to keep everything the same until the end. But just remember, they're not your friends, and their fight is only going to take you down.

Bail Agents: Insurance Lobbyists Are Not Your Friends

There’s another shake-up in the bail insurance lobbyist world, due, I suppose, to a rapid decline in America’s desire to use an antiquated, unfair, and ineffective system of release and detention based on money. But this time the shake-up reveals more than one issue facing the bail insurance companies. Yes, the use of commercial surety bonds is slowly declining and that business, as it’s currently practiced, will likely become extinct. Even bondsmen websites have re-published newspaper stories saying as much. But the bigger issue concerns how, exactly, to deal with the decline right now. Should they adapt, or should they fight?

The bail agents I talk to understand that despite the decline there’s still likely some place for them in what I call “private pretrial,” which involves persons doing the sort of risk assessment and mitigation that courts and the general public are demanding today. Jurisdictions across America want risk assessment, they want people who can make recommendations to the court, and they want people who can perform at least minimal pretrial supervision designed to mitigate known risk for public safety in addition to court appearance. Moreover, they want all of this for all defendants, and not simply for the ones who can afford it. It’s the kind of stuff that pretrial services agencies and programs do every day, but it’s only happening in about 10% of American counties. Private pretrial, if it’s structured like our current public pretrial programs, is a viable option for jurisdictions that don’t currently have pretrial agencies. Indeed, we have at least one operating here in Colorado, and as far as I know, it’s working pretty well. The bail agents who recognize the potential for private pretrial and who are the first to market will probably make a killing.  

The problem is that there’s no place in private pretrial for insurance company backing because a private pretrial system wouldn’t be based on those big, arbitrary money amounts everyone is used to. Thus, unlike bail agents, there’s simply nothing to which the insurance companies can adapt. Accordingly, the only option those companies have is to fight a war to keep the current system in place.

But to wage that war, the insurance companies need bail agents. They need bail agents to faithfully repeat what the insurance companies say about the benefits of an industry that everyone else in America is questioning. They need bail agents to pass out “studies” that the insurance companies know are flawed. They need bail agents to make ridiculous statements like, “the purpose of bail is only to provide court appearance,” or “pretrial release is a failed system.” And I’m sure they’ll need bail agents even more in the future because they’ll come up with more studies, craft more statements, and hire more lobbyists to keep fighting for a system that gives the insurance companies money for essentially doing nothing.

Insurance companies need bail agents to do everything possible to keep their minds off of the fact that the surety bail system currently hinders release, has nothing to do with public safety, and can hang on only through back-room political deals fashioned by those oily lobbyists. In short, they need bail agents to fight for insurance company profits, and never to dream of a system that doesn’t include insurance company participation, even if that system might save the agents their own jobs.

I’ve always liked bail agents because they believe in the right to bail even more than a lot of judges. But if you’re a bail agent and you want to stay involved in bail, you need to be thinking about your place in the future American system of pretrial release and detention. The insurance companies won’t help you do that because they simply aren’t a part of that future. They have money, though (you know they have money because a lot of that money comes from you), and so you’ll continue to see one lobbyist being replaced by another so long as they can afford it. But just remember, because they have money, they’ll fight to the end – even if, in the end, you go down with them.  

36 Words

I’m not quite sure how this didn’t make the front page of the New York Times, because it’s the beginning of the end of money bail in America. The other day, in a federal court case in Missouri, a judge issued a declaratory judgment containing the following 36 words:

“No person may, consistent with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, be held in custody after an arrest because the person is too poor to post a monetary bond.”

You can read about the case, and hear from my friend who filed it, Alec Karakatsanis, here: http://www.stltoday.com/news/local/crime-and-courts/settlement-in-federal-lawsuit-abolishes-cash-bail-for-velda-city/article_00e68a2a-5edd-5423-abac-1af69ae2f018.html.

These 36 words turn every single thing we’ve been doing in bail in America on its head. For over 100 years, we’ve been using money bail to detain people, both unintentionally and intentionally, and I predict now that it’s all going to end – beginning with these 36 words.

If you don’t believe me, send the words to anyone you know involved in state court bail-setting in America, and ask those people what they’d do if they had to abide by them. After an initial “holy crap” moment, they might say something like, “Well, how in the world are we going to keep those really dangerous people in jail?” The answer is that they’ll have to start employing empirical risk assessment to identify those “really dangerous” people, and then they’ll have to change their constitutional bail provisions and statutes to allow them to detain defendants based on risk. It’ll be an in-or-out system, with none of the arbitrariness and randomness of our current money-based system. It’s a wholly different release and detention scheme, and it has few of the hallmarks of bail that they’re probably used to.

So if you’re in a state that’s grown accustomed to secured money bail, accustomed to bail bondsmen, accustomed to insurance company lobbyists, accustomed to poor people in jail and only rich people out of jail pretrial – essentially, accustomed to the failed way that we’ve done bail and no bail for over 100 years in America, get ready to change. I’ve said it before. If you don’t change on your own, someone’s going to force you. And that force might just come from only 36 words. 

John Legend -- "Value Every Life"

There’s a time in every movement when it becomes a truly national movement. And you can tell when that happens by certain people and organizations getting involved. Most of you have heard all about the various new groups, foundations, and political figures getting involved in bail reform and pretrial justice lately, but I’m talking popular culture here.  

Like last week, when someone from HBO called to ask about bail for a weekly comedy show. I asked what in the world could possibly seem funny about locking up so many people for lack of money, and she said that their show specializes in taking “grim” subjects and making jokes about them. I believe her, and it may be one of the best ways to get the attention of the American people.  

Another way is for our American stars and celebrities to get involved. That’s what Oscar and Grammy Award winning singer-songwriter John Legend is doing. I first saw him say something about mass incarceration at this year’s Oscars. And if you aren’t sure about his commitment, look at this story, describing his new campaign to end mass incarceration: http://www.msnbc.com/msnbc/john-legend-launches-campaign-end-mass-incarceration. Or just run his name along with the words “jail reform” and see what comes up. The story says that he’s putting together other artists to help him out, in addition to organizations committed to ending mass incarceration, and so I really hope that my pretrial friends reach out to him.

John Legend has a giant following, and the people who want to leave bail the way it is, keeping poor and minority folks in jail for lack of money, are going to have their hands full when someone famous and with common sense and empathy for others gets full-on involved.

John recently told some people in Texas to “value every life even if people make a mistake.” Exactly, John. Well said.  

Bail for the Bikers -- Stack v. Boyle II?

Once upon a time in America, government officials arrested 12 persons and charged them with violating the Smith Act, which made it against the law to advocate overthrowing the U.S. government. The Smith Act mostly was used to prosecute communists, anarchists, and fascists – people we didn’t like and who scared us, and these particular 12 people were believed to be communists. A judge, looking at these 12 defendants, set each of their financial conditions of release (some would say their “bail”) at $50,000.

Looking at these bail settings in the 1951 case of Stack v. Boyle, the U.S. Supreme Court ruled that they were unlawful. In particular, the judge didn’t take into consideration any individualized factors that help make those bail settings non-arbitrary, the judge apparently based the amount on a single factor – the charge – which the Court expressly said was an arbitrary act, and that the judge didn't consider any evidence so that the amounts would be “reasonably calculated” to provide assurance of court appearance.

In his concurrence, Justice Jackson elaborated a bit. He said that the practice of admission to bail “is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial.” Instead, he wrote, “the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty.” When presented with the argument that the bail-setting court fixed uniform blanket sums by merely looking at the charge and not at each defendant, Justice Jackson wrote, “If this occurred, it is a clear violation of [federal law]” and that to assume that each defendant was completely identical to each other defendant at least violated the law of probabilities. When presented with the argument that the bail-setting court used the amounts to keep these communists in jail on purpose, Justice Jackson wrote that such a use “is contrary to the whole policy and philosophy of bail.” In fact, we now have appellate court opinions that clearly state that setting bail with a purpose to detain people is unlawful.

Fast forward to this week, when government officials arrested 170 people in Texas and charged them with engaging in organized crime. When we use that charge, we mostly go after people we don’t like and who scare us, and these particular people happened to be in motorcycle gangs. A judge, looking at these 170 defendants, set each of their financial conditions of release (some would say their “bail”) at $1 million. You see where I’m going here, and it doesn’t take a genius to notice the similarities between one of our biggest bail cases in America from 1951 and what happened this week in Waco.

Honestly, if our own judges can’t keep track of U.S. Supreme Court precedent, how are we to improve? Today, we actually know how to deal with extremely high risk defendants. And if any – or all – of these defendants are extremely high risk, then they should be detained without bail. But if they’re high risk, setting money bail to detain them is not the answer.  

I’m weary of explaining why. That hasn’t always the case, as usually the explanation is a new thing to judges, who aren’t necessarily trained in social science research, statistics, or other fundamentals of bail that don’t deal with the law. But I shouldn’t have to explain to a judge what the U.S. Supreme Court has said, or is likely to say, about how to set bail.

The history and the law tell us that both bail (release) and no bail (detention) are lawful if you do them right. In this single act of setting 170 identical financial conditions, this judge simultaneously did both bail and no bail wrong.

     

Baltimore Kid Faces Life -- What About the Judge?

Did you hear the one about the 18-year-old kid who bashes a car windshield in Baltimore with a plastic cone, turns himself in, and the judge sets his financial condition of bond at $500,000?

Here’s one of the many news stories about it: http://www.nbcnews.com/storyline/baltimore-unrest/so-much-money-baltimore-teen-who-surrendered-held-500-000-n351606.

Judges can only set conditions of release for two constitutionally valid purposes – court appearance and public safety. Now, since the kid turned himself in, we have to assume he wasn’t the biggest flight risk, so what about public safety? Well, the problem with public safety is that in virtually every state, Maryland included, you either can’t forfeit a financial condition for new crimes or the law allows a surety to be exonerated from any forfeiture so long as the defendant is in custody. Setting money for public safety when you don’t lose the money for breaches in public safety is irrational, and thus likely unlawful under multiple theories of law that require, at a minimum, rationality by the government. Moreover, after decades of research, we have never shown any link between money on a bail bond and public safety. Quite simply, money won’t keep you safe.

So why $500,000? Was it to punish the kid? If so, it was unconstitutional. Was it to teach him or others a lesson? If so, it was unconstitutional. Was it to keep him in jail? If so, it was unconstitutional. Was he given any kind of a decent due process hearing before being detained through an unattainable release condition? If not, it was unconstitutional.

Which raises the important question; what do we do when judges violate the law? We’re pretty keen on making sure everyone else pays when they violate the law. For example, this kid faces life in prison for breaking that windshield. But what about the judge? Is it too much to ask that judges simply follow the United States Constitution? And what should we do when they don’t? 

Cameras Aren't the Answer

I’m taking a quick break from bail to weigh in on the current, seemingly endless series of incidents concerning law enforcement officers and the public, one of the latest occurring during an undercover sting where I used to live in Tulsa, Oklahoma. A lot of people are rightfully concerned that without cameras, we wouldn’t even hear about a lot of the incidents, like the one in North Charleston, South Carolina, when the officer shot Walter Scott eight times in the back.    

Yeah, it was a good thing somebody had a camera at the scene, because it appears that the officer in South Carolina was getting ready to say something like, “He took my Taser, and so I feared that he posed a significant threat of death or serious bodily harm to others.” These days, you can shoot a guy in the back and get away with it if you say the right thing afterward.

But more cameras, including body cameras on the officers themselves, aren’t the answer. Instead, the answer to restoring the relationship between law enforcement and the people they serve in America is a complete overhaul of practically everything that the officers currently do.

Police departments and other law enforcement entities should start with their mission statements, re-drafting them with the help of citizens so as to memorialize the contract that allows them to carry and use deadly weapons on our streets. Interacting with citizens has to be positive for everyone. I know a police department today that actually punishes its officers by making them work at the department’s front desk where the public comes to ask questions. So when officers screw up in that department, their punishment is to interact with people. How messed up is that? I’ve been to that front desk, and the people working there aren’t the happiest campers on the playground. The whole thing is a fundamental disconnect between the police and the people they serve.   

Law enforcement should also completely change its hiring practices – I know another police department in Colorado that didn’t want to hire ex-military or people with law enforcement experience; instead, it hired waiters, who knew how to serve, and then taught those waiters how to be police. The relationship between the police and the public in that town, by the way, is exemplary.  

Law enforcement should completely change its training, too; the current method of training that involves giving orders and ratcheting up the response based on the amount of resistance to those orders is simply not working. Police and other officers must be taught to diffuse environments, to occasionally back away, and to understand the overall perspective of the situation.   

Finally, law enforcement should change its primary focus, which over the decades has slowly drifted from protecting the public to protecting the officers. This isn’t the first time that we’ve had to question our fixation with officer safety. After Columbine, we recognized that officer safety was secondary to saving people’s lives in an active shooter scenario. Quite frankly, if we’re all that concerned with officer safety, we really shouldn’t allow undercover sting operations to begin with. They’re pretty dangerous.

If I were younger and wanted to create a social science theory describing what people wanted in their police forces, I would call it “the Matt Dillon Theory” of law enforcement. If you’ve ever watched Gunsmoke, then you know that Matt often ran headlong into danger to help people. He faced the bad guys upright and played by the rules. Occasionally, he’d have to shoot it out with them, but only if they’d been warned and decided to shoot Matt first. He never shot women (hey, it was the 50s), drunks, or kids. And he never, and I mean never, shot anyone in the back. In my opinion, that’s the kind of law enforcement officers we all want. What we have, instead, is pretty far from it.

I like cops – I know a lot of cops, and I used to work with cops when I wrote about a billion parking tickets back in the day – but I can’t ignore what’s going on. The biggest public backlashes we get in America are when single incidents reinforce and amplify the public’s notions about what they already believe. The fact that people are taking to the streets to protest these single incidents is because the people generally believe all officers are angry, power hungry control freaks looking for a fight. It’s going to take more than body cameras to change that perception.   

Harvard Law Review Forum Article

The Harvard Law Review Forum just published the article, Policing, Mass Imprisonment, and the Failure of American Lawyers. It is written by Alec Karakatsanis (Equal Justice Under Law), a new friend to pretrial justice, and one of those guys with his feet firmly planted inside court houses in places like Ferguson, Missouri, Clanton, Alabama, and North Charleston, South Carolina.

It touches briefly on the quote from the United States Supreme Court, "In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception," and thus the paper reminds us that a big part of pretrial justice is simply figuring out how to make this statement a reality. 

I know Alec, and therefore I know that even though he uses the term “failure,” he means it to inspire the kind of work that only the legal profession can do. I’m a fourth generation lawyer, and I take no offense. 

Here is the link: http://harvardlawreview.org/2015/04/policing-mass-imprisonment-and-the-failure-of-american-lawyers/

Bail -- Accountability Matters?

A few weeks ago, the bail insurance lobbyists wrote that bail isn’t about money. Now they do a bit of a turnaround and say that bail is about money – well, it’s about making a profit at least, something of which they’re quite proud. Holy smokes. First there’s no presumption of innocence – then there is a presumption of innocence. First it’s not about money – and then it is about money. I wish these guys would read their own memos.  

Okay, so now they’re openly proud about the fact that they make their money through the criminal justice system, so let’s take a look at that. Personally, I would like nothing more than ultimately to eliminate my own job; indeed, if my job is gone (and I use the term “job” loosely, as I rarely get paid), that means we’ve eliminated crime and thus the need for police, jails, and courts. I’m pretty sure the bail insurance company lobbyists don’t think that way, though. I’ve often said that if those guys were allowed to run things, they’d actually be thinking of ways to increase crime. They really, really like their jobs, they don’t consider them to be a necessary evil, and they’re proud to think of them like they’re any other job – like dry cleaners and accountants.  

But let’s be clear – when the insurance lobbyists say that people in the commercial bail industry actually work for a living, they have to mean the bail agents, and not themselves. And if they say that being in the commercial bail industry is just like having any other job that makes money – like dry cleaners and accountants – they definitely must mean the agents and can’t possibly mean themselves. Like dry cleaners and accountants, bail agents at least actually do something in this world. Bail insurance companies, on the other hand, don’t do a thing for their money. Instead, they rely on other people to make if for them, they don’t care how it’s made (like, they could care less if making money means that you or your family stay in jail because you can’t afford a bail agent), and they’ll fight like crazy if you try to take that money away from them through the law or even through a forfeiture. Bail insurance companies are like the Mafia – they have bail bondsmen do all the work and then force those bondsmen to dump sacks of money on the insurance companies’ doorstep.

It’s a great deal for insurance companies, but here’s the rub: bail insurance companies have to keep the agents happy. And right now that means telling them just about anything to make them think that their industry isn’t in grave danger of disappearing. Bail insurance companies don’t advertise to the public about bail insurance. A lot of them don’t even list it as something they do on their websites. But they need agents to fight their fights – to keep on repeating what the insurance companies tell them to repeat so that the money continues to roll in. That’s why we see posts on insurance company websites talking about how proud everyone is, and posts like this last one, which tries, once again, to make the case as to why surety bonds are so great. But like most things, the insurance companies aren’t giving the bail agents the whole scoop. If they did, those agents might actually switch to another company, or, heaven forbid, start to imagine a world without insurance company backing.

In the latest post, the insurance companies are basically telling the agents to keep on fighting for the current surety bond system because that system is (1) effective, (2) efficient, and (3) makes people accountable. They’re not telling those agents the flip side, though, and so, if you’re a bail agent, you should at least know what I tell people about those same three things.  

As for effectiveness, the insurance company lobbyists typically say that certain studies and DOJ data say that release on a surety bond is more effective than release any other way. As I’ve written before, however, the studies they use (and that they want the agents to repeat) are flawed in that most of them are using the DOJ data improperly – indeed, DOJ itself had to warn everybody against doing exactly what the insurance companies are doing with these studies and data.

The studies are flawed for various reasons, but the biggest, in my opinion, is that they only talk about whether a surety bond is effective at getting someone back to court, and that simply isn’t enough at bail.

At bail, we try to accomplish three things: (1) maximize release, while we (2) maximize public safety and (3) maximize court appearance. These purposes are given to us through the law, which is intertwined with the history of bail. Unlike other and perhaps simpler areas of the law, however, these underlying purposes are competing – you have to try to release people, but then you have to worry about what they do once you release them – and thus they present a balance. And here’s the important thing: because you must balance them, you can never only discuss one without the others.

For example, if someone says, “I have a way to achieve 99% public safety and court appearance rates,” the law requires that you ask what that method does to release rates (in fact, about the only way to get such high rates is to detain virtually all defendants, which the law wouldn’t allow). Likewise, if someone says, “I have a way to release more bailable defendants from jail,” you have to ask, “Well, what does that release method do to public safety and court appearance rates?”

By far, the biggest problem with the “studies” that the insurance companies use to show their effectiveness is that they only look at what release on a surety bond does for court appearance. So even if the studies weren’t flawed, you’d still have to ask, “Well, what does a surety bond do for public safety and release rates?” And this is where surety bonds fail, because they do absolutely nothing for public safety (you can’t even forfeit the money on a bail bond for new crimes), and they tend to detain a lot of people who can’t pay the fees or post the collateral to use them. In fact, if you do the math on a group of 100 felony defendants, you’ll see that for the two or three defendants released on a surety bond who skip court and are returned “because bondsmen are out looking for them,” about 28 defendants are detained because they can’t pay the money. In short, surety bonds are only really effective at keeping people in jail. Does the threat of being tracked down by a bondsman cause fewer people to skip court to begin with? Nope, not according to the research.

As for efficiency, the insurance company lobbyists typically say that surety bonds get people back to court because bondsmen go out and get them when they skip. Those lobbyists said this very thing here in Colorado, but all the sheriffs and police officers that I knew said the opposite – they said the bondsmen never really go out and get defendants, and that it’s usually sheriff’s deputies or police officers who find them. Because I and my colleagues were researchers, we actually looked into this question, and for three months we studied how all defendants who had failed to appear for court were returned. The result? Well, as you might imagine, about half of the defendants came back on their own. Virtually all of the rest were brought in by deputies or officers. Less than ½ of 1% were brought in by bail bondsmen or bounty hunters. The fact that bondsmen don’t actually go out and get defendants, combined with the facts that surety bonds have nothing to do with public safety and tend to hinder release, mean that surety bonds are about the least efficient method of release you can think of.

As for accountability, all these previous points show that you don’t get any sort of accountability by using a surety bond. Like I said, for-profit sureties and insurance companies aren’t accountable for public safety – you can’t forfeit the money on a bail bond for new crimes, and so bondsmen don’t really care if a defendant is high risk to commit new crimes. In fact, a defendant who continually commits crimes but keeps coming to court is a bondsman’s best customer. So long as the judge plays along and keeps releasing that defendant on higher and higher amounts, commercial sureties make out like bandits.  

Likewise, for-profit sureties and insurance companies aren’t accountable for release – for-profit sureties can essentially decide that a defendant will stay in jail for any number of reasons, or for no reason at all. And, because they get their fee up front, typically collateralize the rest of the financial obligation, don’t bother tracking anyone down, and fight courts to keep from paying forfeitures, you can’t even say they’re accountable for the one thing they claim to do, which is getting people back to court. Out of the three lawful purposes underlying the bail transaction, commercial sureties admit (but try to get you to ignore the fact) that really they only care about one.

Created in America just about 1900, for-profit bail bondsmen (and later the layer of profit-driven insurance companies) are a relatively recent phenomenon in the 1,500 year history of bail. Nevertheless, ever since its creation, that overall system – for profit sureties administering mostly secured money bonds – has led essentially to the same basic problem for over 100 years – the unnecessary detention of bailable defendants. For centuries in both England and America we employed a system of bail that used uncompensated personal sureties administering mostly unsecured bonds, meaning that nobody had to pay anything up front to get out of jail. We have the ability to re-create that system by using pretrial services agency supervision (or supervision through other entities such as probation departments), and simply switching from secured to unsecured bonds. The only problem with this solution is that it leaves no place for bail insurance company lobbyists. And since they probably don’t want to actually dry clean your clothes or do your taxes for a living, I think we can expect a fight.  

Bail – It’s Not About the Money?

Well, I read the latest installment from the bail insurance people – you know, the ones who want to keep our current system of bail in place so they can make boatloads of money – and they make the case for why bail isn’t about the money at all; instead, apparently, it’s about influence.

They’re right to a degree. Bail shouldn’t be about money. Bail is all about release, and money is simply the one condition of many that, uniquely and unfortunately, tends to stand in the way of the actual release of bailable defendants. But I think what the insurance company lobbyists are getting at is the idea that money isn’t such a big deal to them – to the commercial surety industry.

The only problem with that argument is the fact that money is really kind of a huge deal to the commercial surety industry. In fact, it’s such a big deal that if a defendant doesn’t have any money, the industry won’t even help him or her out. It’s such a big deal that if a jurisdiction decides to follow the law and the evidence and promote the release on recognizance or on “unsecured” financial conditions (the kind that don’t produce any kind of profit), the bail insurance companies send in lawyers to block those improvements or even to pass bills designed to force judges to use more money. It’s such a big deal that the commercial bail industry spends a ton of time trying to figure out ways not to pay back any money once they’re involved. And it’s such a big deal that the insurance companies will do just about anything – pay for research, send out armies of lobbyists, and mislead government officials and private funders just to keep the flow of money streaming in (in a recent Mother Jones article, a bail lobbyist bragged that they have never had to cover any loss; apparently, they leave payment of the losses to defendants, their families, and the bail agents.) They make sure the laws only allow for forfeiture for court appearance and not public safety, and they continue to tell their bail agents all kinds of factual distortions to keep those bondsmen from recognizing why their businesses are ultimately going to fail.

In the article that I read, the insurance company also says that public pretrial services agencies simply don’t have “skin in the game,” or influence. They forget to point out that these agencies play a crucial role in the pretrial phase that has grown up around a commercial bail industry that has refused to change. Pretrial agencies supervise for both court appearance and public safety (yes, insurance companies, there are two constitutionally valid purposes for limiting one’s pretrial freedom, and if you set conditions to protect the public, you need someone to make sure those conditions are followed).

And, what’s this whole “skin in the game” thing? I mean, it’s actually a pretrial services officer’s job to do these things. It’s like telling a cop that he really can’t do an effective job as a police officer because he’s going to be paid whether he fights crime or not. And, by the way, the insurance companies have apparently forgotten about the history of bail, which illustrates massive debates during their creation over the fact that bondsmen lose all sense of accountability and responsibility once the defendant pays a fee or indemnifies the surety. Basically that’s the main reason why no other country has allowed commercial bail bondsmen to exist. We did it in America because we didn’t have any better alternatives, and we misunderstood how secured bonds would end up detaining just as many people in the future as the system we’d been using before.   

I talk to bail agents every now and then, and every time I do I tell them that the future of commercial bail or “private pretrial release” – if it exists at all – will look dramatically different than the current system. For one, the bail agents would have to supervise for court appearance and public safety; they’d have to take all comers; and although they might be able to charge a fee for service that would cover the cost of supervision, they’d have to stop relying on these arbitrary amounts of financial conditions that don’t have anything to do with court appearance and public safety.

In fact, between you and me, bail agents, the insurance companies aren’t doing you any favors these days. I’ll give you just one example – the insurance companies continually tell you to cite to certain DOJ data to say that surety bonds are superior to other forms of releases. Unfortunately, DOJ itself – yes the same entity that produced the data – has said that you can’t do that. So as soon as you cite the data, someone like me goes in and shows people the official DOJ stance that contradicts everything you just said. The insurance companies know about the DOJ stance, because it’s in a published advisory and they complained about it mightily when it came out. But they just won’t tell you bondsmen about it. It works better for them to have you go in and cite to bad research in the off chance that it might work. Bottom line – if you bail agents continue to allow the insurance companies to strategize your future, you won’t have one.

In fact, any decent improvement in bail in America leaves out the insurance companies, which only have a stake in a system with high, arbitrary money amounts that, even when forfeited, never affect their profits. They say that bail is all about “influence,” but frankly, the only influence the insurance companies care about is the kind of back-room and oily influence they have over legislatures other public officials. The good news is that all of that’s starting to change.

Finally, because the insurance lobbyists think we don’t know anything about the purpose of pretrial release, let’s review. Historically and legally, bail is release, just as “no bail” is detention. The purpose of bail up until the Normans invaded England was to avoid blood feuds, but as soon as the Normans started building jails and holding folks until judges showed up for court, the purpose of bail quickly became to release people and it's stayed that way ever since. So it’s easy: the purpose of bail is to release people, and the purpose of no bail is to detain people. Compare those purposes to the purposes of conditions of bail or release, that is, limitations on pretrial freedom. Those purposes are court appearance and public safety, currently the only two constitutionally valid purposes for limiting release.

The bail insurance companies typically say that, “The purpose of bail is court appearance.” What they mean is that the purpose of money – or one condition of bail – is court appearance, because money can only be forfeited for failure to appear for court, and bondsmen and bail insurance companies only deal in money. They have confused bail – a process of release – with one of its conditions. They don’t talk about public safety because bail insurance companies are not in the business of public safety, and so they don’t really care if a defendant commits a crime while on pretrial release. When the Supreme Court recognized public safety as a valid purpose for limiting pretrial freedom, the bail insurance people didn’t evolve to take that into consideration. I’m not sure why, but it seems like maybe they just didn’t want the extra work of trying to supervise for public safety. I mean, that takes a bit of work, right? And why work when you can get your money for nothing? Finally, the insurance companies don’t really care about release because their system of requiring payment prior to release actually causes a lot of detention. They say there’s no such thing as a bailable defendant stuck in jail because he or she can’t pay the money to get out, but that’s just dumb.

Bail is, in fact, all about money right now. Give it five years, though, because that’s going to change.       

If You’re Writing About Excessive Bail . . .

If you’re writing about excessive bail, I hope you’ll read this quick blog, which may give you some idea of how we're changing the typical excessive bail narrative.

For over 100 years, when they have actually addressed it, judges have been deciding excessive bail cases only one way. They take the amount – typically, a really high and arbitrary amount – and they compare that amount to other, equally arbitrary amounts in similar cases. The idea of deciding whether the amount is “reasonable” allows them to do this kind of fact-based analysis, and virtually all state supreme courts have said that excessive bail is defined as unreasonable bail.

The absurdity of this kind of analysis, however, is readily apparent by the fact that we actually have ALR articles that try to compile excessive bail cases, and those articles will often limit their compilation to, for example, “cases over $500,000,”  as if a set sum can adequately delineate where the proper analysis of reasonableness or excessiveness can actually begin.

Now, however, there's a movement to analyze excessive bail cases differently, and it doesn’t involve any radical changes; indeed, it only involves getting back to the basics of the test for excessiveness itself.

First, though, realize that any excessive bail discussion can now rightfully include both federal and state law in the same document. Whereas once bail scholars used to debate whether the bail clause of the 8^th Amendment to the U.S. Constitution was “incorporated” against the states, now everyone seems to agree that the Supreme Court believes that it is. Your cite on this point will be a bit strange, however, as you’ll likely be citing to footnote 12 in McDonald v. Chicago, a Second Amendment case, and that footnote’s reference to Schilb v. Kuebel as your authority.  Even so, it’s a big deal, because now at least you have a decent federal standard to work with.

That standard comes from United States v. Salerno, in which the Supreme Court said that excessive bail involves a balancing test – i.e., balancing the government’s proposed conditions of release or detention with the perceived evil, or lawful purpose. This test, alone, opens the door to many more excessive bail arguments, once you realize that conditions or bail, or limitations on pretrial freedom, may include more than just financial conditions, and may only lawfully have one of two purposes – court appearance or public safety. This last requirement is extremely important. Bail set to punish is an unlawful purpose, and bail set to detain is equally unlawful. It’s like setting bail to impress your friends. That seems absurd, but we need to start thinking of conditions of bail (i.e., release) set to detain someone as being equally absurd and unlawful.

If you’re writing about excessive bail, realize, too, that since virtually every state defines excessive bail as “unreasonable,” we now have some pretty good research showing that secured money in most, if not all cases, is excessive because it's unreasonable. For example, we have research showing that setting an unsecured financial condition will get you the exact same results for public safety and court appearance as setting a secured financial condition, but will lead to less unnecessary detention. If you get the same results from a less restrictive condition, it simply wouldn’t be reasonable to set the more restrictive one, and thus the more restrictive condition should be deemed excessive. The essence of the Excessive Bail Clause is to keep the government from doing things to defendants “just to make sure.” Setting a secured financial condition violates the Clause, however, by exceeding the standard for setting conditions generally, which is that they can only be set to provide “reasonable assurance” or either public safety or court appearance, and not complete assurance or even “extra assurance.”

Basically, any research that shows that any condition of release doesn’t work – that is, that the condition doesn’t further the lawful purposes of bail – would argue for that condition to be declared unreasonable and thus excessive. But in bail, we have even more important research to help us. We now have research showing that if a judge sets a secured financial condition of release on a lower risk defendant, and if that lower risk defendant stays in jail due to his or her inability to find the money, bad things start to happen. In fact, the longer they stay in jail, the more likely they are to harm the public and not to come back to court. Now, if you’re a judge setting a condition of release to protect the public and get someone to return to court, would it be reasonable to set a condition of release that ended up doing the opposite of what you intended? Absolutely not. Would it thus be excessive? Absolutely. 

Finally, if you’re writing about excessive bail, you’re going to have to deal with what I call the “unfortunate line of cases,” which is that line of cases that says, essentially, a financial condition isn’t excessive simply because someone can’t afford it. This line of cases is unfortunate because it's a complete aberration to the legal and historical notion that bail should equal release. The line was created at a time in America when we were running out of personal sureties, and we had not yet tried commercial sureties. We had tons of bailable defendants being detained unintentionally due to their lack of sureties and their inability to afford the financial condition themselves. Apparently, back then, judges were pretty skittish about flat-out releasing all bailable defendants (even though we had been doing that very thing for the thousand-year period before), and they didn’t have any other alternatives – i.e., no supervision, no risk assessment, no non-financial conditions of release, no research, etc., to alleviate their concerns. The fact is, though, today we have all the things necessary to encourage judges or legislatures to completely overturn this entire line of cases. Indeed, the cases have been overturned through the enactment of a single sentence in both the D.C. and federal bail statutes, which both say, essentially, that money cannot result in the pretrial detention of the defendant.

Bail reform in America means that we have to get back to basics in our legal foundations. Just remember that if something is unfair, unreasonable, irrational, or arbitrary, it’s likely unlawful. Because money at bail is all of these things, it’s simply a matter of time before it’s gone.