Friday, July 24, 2015

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? 

Thursday, July 16, 2015

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.