and two, http://timschnackebailbasics.blogspot.com/2015/07/pennsylvania-lawmakers-back-commercial.html, of this series, and here is
number three, a classic example of how the insurance companies are ruining the
reputations of bail agents everywhere.
Recently the new guy over at
the American Bail Coalition – the big bail insurance lobbying group that wants
to keep everything the same at all costs – wrote an opinion piece in the
Albuquerque Journal about New Mexico bail reform. In that piece, he wrote three
main things that are simply wrong, that are quickly refuted, and that leave
people in New Mexico rightly thinking that the entire bail industry is trying to
hoodwink them.
First, the author cites to a
study in a Chicago economics journal to say that surety bonds are better than
any other form of release. I’ve written about this before, so I’ll just
summarize. The Bureau of Justice Statistics (BJS) put out a bunch of data about
pretrial release. Some people took that data and wrote a couple of papers saying
that it showed that certain types of release – like release on a commercial surety
bond – were better than other types. The insurance companies went batty,
running around the country saying that the data and the papers proved that they
were best. Then BJS put out a paper saying, “No, no, you can’t use our data to
make comparisons of release types like those made in the papers – it would be
really misleading to do so for a bunch of reasons.” The insurance companies
complained mightily, saying that the whole thing was unfair and rigged against
them. Then those companies went silent. And then, after six months and as if
nothing ever happened, the bail insurance company lobbyists went right on
citing the studies and data for the exact thing that they weren’t supposed to cite
them for. You see, they’d figured out that nobody was going to do anything to
them if they misled people, so why stop?
So the Chicago paper (and
others like it) continues to get cited by the bail insurance companies even
though it’s wrong and misleading to do so. The insurance companies also get
bail agents to try to pass it out in various states. What’s the problem? The
problem is that right after they pass it out, someone, like me, usually explains
the whole data thing, and the bail agents look like liars.
Second, the author mentions
that New Jersey’s efforts at bail reform are unaffordable. During passage of
that reform, literally the only people who made this claim were people who made
money from the current system – the bail insurance company lobbyists – who used
inflated inferences about certain budgets that nobody else in New Jersey even
believed. Bail reform passed in New Jersey for a number of reasons, one of
which was that the reforms were going to be extremely cost-effective, not more
expensive.
Third, the author cites to
Mesa County, Colorado, and his stuff about that jurisdiction was so wrong that
Mesa County and its Chief Judge both felt compelled to issue a response. Think
about it – a little county in Colorado has to correct what a national insurance
group says to people in Albuquerque, New Mexico. It’s sad, but it’s needed.
Frankly, if it happened every time the insurance companies made bogus claims,
all you’d ever read is corrections.
Finally, the author shows a
fundamental misunderstanding of bail in America generally and bail in New
Mexico in particular. Historically and legally, bail is a process of release
with conditions designed to provide reasonable assurance of public safety and
court appearance. The New Mexico Supreme Court, in State v. Brown, said essentially the same thing both in a footnote
– where the court wrote that bail as defined in New Mexico could be effectuated
by release on personal recognizance – and at the beginning of the opinion –
where the court equated the right to bail with the right to be released
pretrial. When the ABC insurance lobbyist says that “bail works,” what he’s trying
to say is that “commercial surety bail works,” and we know from history that
commercial surety bail has never worked. Equating the term “bail” – a right in
so many American state constitutions – with a right to release to a for-profit
bondsman, is a fundamental error that is amply illustrated by the fact that
virtually all state constitutional right to bail provisions were drafted long
before commercial bail even existed.
How does all of this affect
bail agents? Well, as you probably know by now, the public doesn’t distinguish
between insurance company lobbyists and bail agents. To them, you’re all in the
same bucket, so when an insurance lobbyists misleads them, they take it out on
the bail agents. Right now, Mesa County and a bunch of other people (including
me) are explaining to everyone in New Mexico why this opinion piece is based on
wrong information, and the people of New Mexico won’t distinguish between ABC
and the bail agents who actually have to work for a living. This is really the
first thing this guy has written since being hired by the insurance companies,
and he’s already managed to damage the reputation of bail agents throughout New
Mexico. You agents will eventually wonder why the great piece by ABC didn’t
help you, but now you know. It’s wrong, and we’re telling everybody in New
Mexico why it’s wrong.
Remember what I’ve written before
in this blog. There may be a place for private pretrial in America’s system of pretrial
release and detention, but there’s no place in the future for bail insurance
companies. They know that, so they’re fighting, and they’re going to keep trying
to get you to fight with them. It’s really their only way to continue making
all that money. This is your chance to morph into a private business model that
might actually benefit the courts and the general public. But as the
Albuquerque Journal piece amply demonstrates, you’ll lose that chance if you
rely on bail insurance companies to help you.
