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.
