Earlier, I wrote parts one, http://timschnackebailbasics.blogspot.com/2015_06_01_archive.html,
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.