Bail Agents: Insurance Lobbyists Are Not Your Friends

There’s another shake-up in the bail insurance lobbyist world, due, I suppose, to a rapid decline in America’s desire to use an antiquated, unfair, and ineffective system of release and detention based on money. But this time the shake-up reveals more than one issue facing the bail insurance companies. Yes, the use of commercial surety bonds is slowly declining and that business, as it’s currently practiced, will likely become extinct. Even bondsmen websites have re-published newspaper stories saying as much. But the bigger issue concerns how, exactly, to deal with the decline right now. Should they adapt, or should they fight?

The bail agents I talk to understand that despite the decline there’s still likely some place for them in what I call “private pretrial,” which involves persons doing the sort of risk assessment and mitigation that courts and the general public are demanding today. Jurisdictions across America want risk assessment, they want people who can make recommendations to the court, and they want people who can perform at least minimal pretrial supervision designed to mitigate known risk for public safety in addition to court appearance. Moreover, they want all of this for all defendants, and not simply for the ones who can afford it. It’s the kind of stuff that pretrial services agencies and programs do every day, but it’s only happening in about 10% of American counties. Private pretrial, if it’s structured like our current public pretrial programs, is a viable option for jurisdictions that don’t currently have pretrial agencies. Indeed, we have at least one operating here in Colorado, and as far as I know, it’s working pretty well. The bail agents who recognize the potential for private pretrial and who are the first to market will probably make a killing.  

The problem is that there’s no place in private pretrial for insurance company backing because a private pretrial system wouldn’t be based on those big, arbitrary money amounts everyone is used to. Thus, unlike bail agents, there’s simply nothing to which the insurance companies can adapt. Accordingly, the only option those companies have is to fight a war to keep the current system in place.

But to wage that war, the insurance companies need bail agents. They need bail agents to faithfully repeat what the insurance companies say about the benefits of an industry that everyone else in America is questioning. They need bail agents to pass out “studies” that the insurance companies know are flawed. They need bail agents to make ridiculous statements like, “the purpose of bail is only to provide court appearance,” or “pretrial release is a failed system.” And I’m sure they’ll need bail agents even more in the future because they’ll come up with more studies, craft more statements, and hire more lobbyists to keep fighting for a system that gives the insurance companies money for essentially doing nothing.

Insurance companies need bail agents to do everything possible to keep their minds off of the fact that the surety bail system currently hinders release, has nothing to do with public safety, and can hang on only through back-room political deals fashioned by those oily lobbyists. In short, they need bail agents to fight for insurance company profits, and never to dream of a system that doesn’t include insurance company participation, even if that system might save the agents their own jobs.

I’ve always liked bail agents because they believe in the right to bail even more than a lot of judges. But if you’re a bail agent and you want to stay involved in bail, you need to be thinking about your place in the future American system of pretrial release and detention. The insurance companies won’t help you do that because they simply aren’t a part of that future. They have money, though (you know they have money because a lot of that money comes from you), and so you’ll continue to see one lobbyist being replaced by another so long as they can afford it. But just remember, because they have money, they’ll fight to the end – even if, in the end, you go down with them.  

36 Words

I’m not quite sure how this didn’t make the front page of the New York Times, because it’s the beginning of the end of money bail in America. The other day, in a federal court case in Missouri, a judge issued a declaratory judgment containing the following 36 words:

“No person may, consistent with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, be held in custody after an arrest because the person is too poor to post a monetary bond.”

You can read about the case, and hear from my friend who filed it, Alec Karakatsanis, here: http://www.stltoday.com/news/local/crime-and-courts/settlement-in-federal-lawsuit-abolishes-cash-bail-for-velda-city/article_00e68a2a-5edd-5423-abac-1af69ae2f018.html.

These 36 words turn every single thing we’ve been doing in bail in America on its head. For over 100 years, we’ve been using money bail to detain people, both unintentionally and intentionally, and I predict now that it’s all going to end – beginning with these 36 words.

If you don’t believe me, send the words to anyone you know involved in state court bail-setting in America, and ask those people what they’d do if they had to abide by them. After an initial “holy crap” moment, they might say something like, “Well, how in the world are we going to keep those really dangerous people in jail?” The answer is that they’ll have to start employing empirical risk assessment to identify those “really dangerous” people, and then they’ll have to change their constitutional bail provisions and statutes to allow them to detain defendants based on risk. It’ll be an in-or-out system, with none of the arbitrariness and randomness of our current money-based system. It’s a wholly different release and detention scheme, and it has few of the hallmarks of bail that they’re probably used to.

So if you’re in a state that’s grown accustomed to secured money bail, accustomed to bail bondsmen, accustomed to insurance company lobbyists, accustomed to poor people in jail and only rich people out of jail pretrial – essentially, accustomed to the failed way that we’ve done bail and no bail for over 100 years in America, get ready to change. I’ve said it before. If you don’t change on your own, someone’s going to force you. And that force might just come from only 36 words.