Wednesday, April 22, 2015

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.   

Monday, April 13, 2015

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. 

Friday, April 10, 2015

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.