Monday, September 21, 2015

The Untold Cost of Eliminating Money Bail – A Lot More Money?

The latest from the bail insurance companies says that people like me don’t like to talk about the “cost” of reform. Not true, my friends – in fact, let’s talk about it now.

I’ll start big picture. Basically, the insurance companies say that commercial bail costs less than anything else. The problem is that when they say this, they leave a lot out, which is why we’re having a bail reform movement to begin with. First of all, they leave out the fact that private bail companies only care about court appearance, not public safety, and yet judges are required to care about both of those things when they set bail. In virtually every state, you can only forfeit a commercial surety bond for not showing up for court. If a defendant commits a new crime while on release, the bail agent and insurance company don’t have to pay anything and they get to dump the defendant as a client. In fact, if the judge plays along and sets another commercial money bail bond, then the bail agent and insurance company can just do the whole thing over again. I often say that the best client that the bail industry has is one who always comes to court but keeps committing new crimes.

Commercial surety bonds have absolutely nothing to do with public safety. Just ask the people of Washington State, who had to change their constitution because a guy named Maurice Clemmons got out on a commercial surety bond, tried to rape two small girls, and then shot and killed four police officers. So what’s the cost of not even caring about public safety? Really, this is the biggest thing the bail industry has to deal with, and they just don’t have an answer for it.   

Because we keep pointing this out, you’ll hear the insurance lobbyists floating some incredibly strained logic trying to convince people that they care about public safety like, “Well, we make sure they come to court, and so long as they’re coming to court, they aren’t committing new crimes.” Oh, yeah, now I remember. That’s exactly what the insurance company lobbyist said in the blog I just read. He said, “When people show up for court, they are not out in the community committing additional crimes.” Man, that’s just messed up. Again, commercial surety bonds have nothing to do with public safety. And if you argue for one or set one, then you look like you don’t care about public safety either. That’s it.

The second really big thing they leave out is that bail agents and insurance companies don’t want to have to help someone bond out of jail. Basically, they want to pick and choose who gets out of jail, and they want to pick and choose mostly based on how much money people have. In the end, that one thing – the ability to turn people away for lack of money (or really for no reason at all) – has led to the mass incarceration of pretrial defendants ever since we created the commercial surety industry in 1900. And the costs associated with that are astronomical. You’ll never hear an insurance company lobbyist compare the cost of being released through a public or nonprofit pretrial services agency versus the cost of staying in jail because some bail agent decided not to help. The cost of jail can be as much as twenty times the cost of pretrial services agency supervision in the community.  

The third really big thing they leave out is that when there’s a public sector release system in place, the bail agents and insurance companies really, really like to have someone released on a commercial surety bond along with the public agency supervision. That way, they don’t have to do anything except collect money. This is commonly known as double-supervision, and it wastes more money in America than we can even estimate.    

The fourth and final really big thing they leave out is that commercial bail agents and insurance companies simply have no way of determining a defendant’s risk for failure to appear for court or public safety. They go by their gut, and often you’ll hear them say things like, “Well, since that guy can’t afford to pay me, he must be a risk to public safety so it’s a good thing that he’s in jail.” Part of the job of pretrial services agencies and programs is to assess defendant risk, lately through the use of validated pretrial risk assessment instruments that use sophisticated statistics to determine the likelihood of returning to court and not committing new crimes. When they use these instruments, they can help judges match supervision needs to risk, and that saves an inordinate amount of money. I once heard a bail insurance lobbyist say that he didn’t believe in these risk instruments – that he actually believed it was a better system to rely on a bail agent’s gut instinct. Can you imagine? An insurance guy who doesn’t believe in actuarial risk assessments, which are the very things that those same insurance guys use to determine your health, life, and car insurance.

The rest of the insurance blog tried to piece together odds and ends designed to show that it’ll cost a bunch of money to dump the old system. Now, remember, the system they don’t want us to dump is the system that doesn’t care about public safety, that doesn’t care if defendants get out of jail, that doesn’t care if it wastes resources, and that has no way of determining or responding to actual defendant risk – again, they just left all that out. So here are a few things that the blog said.

First, it said that New Jersey was presented estimates about how much a pretrial services agency approach would cost the state. Well, guess who presented those estimates? Right. It was the bail insurance companies, which used an incredibly inflated estimate of the D.C. pretrial budget and extrapolated that budget to the entire state of New Jersey. Yes, estimates through testimony were presented, but nobody in New Jersey bought it. Even with that testimony, that state passed changes to its constitution and statute designed, among other things, to reduce, if not, eliminate reliance on the commercial bail system.

Second, it used the same D.C. pretrial budget to say that it would cost some astronomical amount in some other city. The insurance companies have been using this argument for years now, and it simply isn’t working. Everybody knows that the D.C. pretrial budget is bigger than everywhere else. That’s why, after the insurance companies point out the D.C. budget, people like me show decision makers about twenty other pretrial services agency budgets, from all over the country, that demonstrate how you can run an effective pretrial services agency or program for nominal costs. A lot of places are even using probation officers to do the supervision, and we already have probation in virtually every jurisdiction in America. 

Third, it said that states and counties benefit from the taxes and forfeitures inherent in a private bail system. Well, if I ever actually saw an insurance company pay on a forfeiture, it would be a first. In a recent Mother Jones article, one bail insurance lobbyist said his company had been in business for 107 years and hadn’t paid out a single claim. And just check your statutes. If they’re like everyone else’s, you’ll see how the bail industry has helped enact multiple hurdles, extensions, and exceptions, all to keep them from having to pay forfeitures. By the way, insurance guys, if you wonder into a law library, you’ll also see that setting bail to make money is unconstitutional, so saying that you like a bail system that makes money for the government neglects the fact that such a system would actually be unlawful for that purpose. I wouldn’t focus on this argument too hard, because the tide is turning in America away from profiting off of flaws in the justice system.    

The blogger ends by saying that the comparison between release on a commercial bail bond and release to a public or nonprofit pretrial services agency or program isn’t even close, and he’s absolutely right. Commercial bail (as it’s done today) is so far off that it needs to go. There’s probably a place for what I call “private pretrial,” but that’s not going to look anything like what we do today, which is to rely on huge, arbitrary numbers, and which seems only to exist to line the insurance companies’ pockets.

So, you see, people like me don’t mind talking about cost at all. I just don’t do it all that often because most of the improvements I’m talking about doing are for reasons that include fairness, rationality, common sense, and following the law. Ask some bail insurance company lobbyists to tell you the cost of not following the constitution, the cost of ignoring the research on risk assessment and mitigation, the cost of unnecessary pretrial detention, or the cost of allowing extremely high risk people out on a surety bond simply because they can pay. Those are the costs that matter, and those will be the costs that the bail industry won’t want to discuss.