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.