Monday, March 16, 2015

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.