Merry Christmas!

It's Christmas Eve, so it's time to focus on what matters. I believe in bail reform because I think that how we treat the most vulnerable among us tells us something about ourselves. The message of Christmas concerns all persons, no matter who they are or what they've done. I believe this same essential message, which provides hope through forgiveness and love, is at least some part of virtually every major religion today.

So whether or not you celebrate Christmas, and whether or not you believe in bail reform, I wish you all peace, happiness, and success in the coming year.

Tim

Harris County Bail Case

The bail insurance companies have been traveling around the country trying to convince people that their briefs in the 11th Circuit show how the law is on their side in these federal lawsuits.

Three days ago, though, the Federal District Court for the Southern District of Texas filed a memorandum and opinion in a suit against Harris County over its bail practices. In that 78 page opinion, the Chief Judge disagreed with several of the same claims you'll find in the 11th Circuit briefs. Rational basis instead of strict scrutiny? Dead! Use 8th Amendment analysis rather than Equal Protection? Dead! Younger abstention? Dead! Neidermeyer . . . ?   You get the gist.

Next up is a motion for preliminary injunction in the Harris County case -- you know, the thing the plaintiffs won in the 11th Circuit that forms the basis of that interlocutory appeal.

The insurance company lobbyists like to claim that all the previous settlements are due to the small jurisdictions begin overwhelmed, but you wait and see. Once plaintiff's attorneys start deposing the defendants, including judges, even a big place like Harris County is going to find settling simply to follow the law much more palatable.

Insurance Companies Pushing Money Bail on Poor People

I thought this would be a good time to take a roll call of insurance companies pushing money bail on the people of America, whether they can afford it or not:

Accredited Surety and Casualty Company

AIA Surety

American Surety Company

Bankers Surety

Black Diamond Insurance Company

Lexington National Insurance Corporation

Sun Surety Insurance Company

Universal Fire and Casualty Insurance Company

Whitecap Surety  

Ahh, Life Experience

PBUS recently posted a letter to the editor from a retired judge with the caption, "When your life experience includes decades as a judge, court administrator, and lawyer, you understand the purpose of secured bail."

I read that letter and realized, once again, why we need certain judges simply to retire to get bail reform done in America. In fact, the only thing clear from this judge's letter (and his vast experience) is that he participated fully in the very thing America so desperately wants to reform today. He was part of the problem. Maybe even a big part, which is probably why he felt the need to justify his many years of accepting money bail in a letter.

I know a lot of other judges, judges like Eric Washington, Charles Daniels, Truman Morrison, Scott Bales, and many more, who quickly spotted the inherent unfairness in the money bail system. They are helping to lead this generation of reform, and, in the end, they will create a safe, fair, and effective pretrial justice system in America.

This quote is probably wrong, but I think Alan Dershowitz once said that often a person's 20 years of experience involves one year of doing it wrong, and nineteen years of repeating the mistakes.

Man, that Alan D is one smart dude.

If I Were a Lobbyist for the Bail Agents

If I were a lobbyist for the insurance companies, I’d do exactly what ABC is doing. I’d fight everything, because every alternative but the status quo means the insurance companies lose money. If I were the lobbyist for the bail agents, though, I’d be helping them say to various officials, “Hey, we helped America with pretrial release back in the late 1800s, and we can help now. It may mean that we have to change a few things, but we’re willing to do it.”

If you keep arguing to keep the status quo, pretty soon people will shine a light on it, and you’ll end up with a story like this. And, frankly, there’s a bad news story like this waiting to be told in every state. It’s just a matter of looking for it. 

You’re watching your businesses die, but it’s only because the people running the overall strategy are insurance companies and short-sighted bail bond companies like the one in the article.  

If, In Fact, ABC Has Its Conference . . .

If, in fact, ABC has its inaugural affiliate conference this month, it will undoubtedly trumpet its memo on California law, its white paper on Maryland law, and its ghostwritten memo signed by one very lonely Illinois judge. I doubt, however, that ABC will mention the Chief Justice of California’s proposed study on money bail, a similar white paper written by Eric Holder about Maryland, or my memo countering that very lonely Illinois judge. This merely follows what ABC has done in the past, which is to conveniently only mention the very few things it thinks are a success and leave everything else out.

Those successes, though, are very few indeed, and yet the massive effort to achieve them is basically being paid by you bail agents. The new tactic over at ABC appears to be enlisting the help of other lobbyists around the country to essentially argue the status quo – you know, those “fight everything” arguments that have gotten you so far. But, you know, someone has to pay for them, and I believe that would be you, bail agents. On the other hand, a lot of people working on reforming the status quo are doing it for free. I know I wrote my piece for free, I’m pretty sure Eric Holder didn’t charge anyone for his most recent memo, and the Chief Justice of California isn’t likely to take a bit of money to argue anyone’s position, either. Let’s face it – it’s like a bunch of mercenaries fighting against people who think it’s a holy war. Who do you think will win?

So you’re paying for everything that ABC is doing, but it’s only telling you about a piece of what’s happening out there.  Moreover, ABC has absolutely no intention of pulling back this fight to actually help jurisdictions figure out how to include private supervision into the mix. That’s because private supervision, just like public supervision, means the bail insurance companies will be out of the picture.

So if, in fact, ABC has its conference (can you tell I think it won’t happen, or if it does, it will mostly be attended only by insurance dudes?), you should ask them how hiring more people simply to make the same faulty arguments is going to stem the tide of reform.    

The American Bail Coalition is Officially Lost

You may remember when ABC first blogged about its work in New Mexico. It said, "ABC Brokers Historic Bail Reform Compromise in New Mexico" by crafting language that "is good for the State of New Mexico" Go ahead, read all about it here.

Cut to today, when ABC posts a story in which a New Mexico legislator says that she won't support the amendment and thinks that "it will have a devastating effect on New Mexico's Bail Industry."

I can now say without any doubt that ABC doesn't know what it's doing. Or maybe they thought we'd all forget. What are they saying by posting today's story -- did ABC broker a historic compromise or did they just muck everything up? Hard to say since ABC seems to be saying both things at the same time.

Another question for the ABC conference next month: "When is ABC going to learn something about bail?" But, really, I've pointed out stuff like this for a long time, so my question is more for you bail agents: "When are you going to figure out that ABC is officially lost?"

The Presumption of Innocence at Bail

Well, I got tired of hearing people say, "The presumption of innocence doesn't apply to bail" -- especially since I got the bail insurance people to stop saying it a couple of years ago -- so I wrote up a short explanation for anyone interested.

You can find it here.

I've been teaching on this a long time with a shorter document that I passed out, but this version incorporates another, more detailed argument that I heard from a very smart prosecutor.

Happy reading (it's not long)!

The American Bail Coalition Conference Agenda

Okay, now I understand the ABC strategy. I knew the bail insurance companies were on their heels – there’s just too much stuff happening all over the country for them to keep up. For a while I figured they’d just spend another million and hire 3 or 4 more lobbyists. But I see now that they expect you bail agents to do their heavy lifting.

ABC is holding their first ever affiliate conference, and it’s clear from the agenda that they’re sticking to their whole “fight everything” doctrine. “Yes,” ABC says, “the whole country is wrong, and it’s just that the right message isn’t being delivered. The sheriffs are wrong. The judges are wrong. The prosecutors and defense attorneys are wrong. The municipal, county, and state governments are wrong. The federal courts are wrong, too. So it’s just a matter of changing everyone’s mind. And we can do that by convincing everyone that they’re wrong!” Great strategy, huh? I mean, they’re even going to “debunk” certain fundamental premises, like the fact that we have a problem with bail to begin with. Folks, ABC already tried that strategy 10 years ago when we first got started. It didn’t work. Man, it really didn’t work.

But then I see that ABC expects all you bail agents to sign up for a panel and write up data and anecdotes so that you can help with the fight. ABC doesn’t even know what to say anymore, and so they need you to say it. Oh, they’ll give the standard arguments they’ve been peddling around the country, but remember what I said last week – those arguments aren’t working.

This is your chance to ask these ABC folks a few questions. What are they doing besides fighting everyone to ensure the industry continues to exist? Do they have any kind of strategy if money goes away? What happened in Santa Clara when both the current and past ABC head couldn’t even stop a county from changing? What happened in New Mexico, New Jersey, Arizona, Alaska, Utah, and Missouri? What are they doing in Georgia, Alabama, Mississippi, Louisiana, Tennessee, Texas, Kansas, California, and Massachusetts? What is ABC doing about the MacArthur Initiative? What about the Three Days Count Initiative or the Smart Pretrial Initiative? What are they doing about the Evidence-Based Decision Making Initiative? They’ll talk to you about the Equal Justice Under Law lawsuits (they’re fighting them, as usual), but will they mention the other four or five national organizations planning similar national litigation strategies? Do they have a plan for the Chief Justices in America, who have mostly decided to move away from a secured money bail system? What about DOJ? Do they even have any clue as to how to “fight” the DOJ?

And just today, Harvard Law School released, “Moving Beyond Money: A Primer on Bail Reform.” Did ABC even know about that, or what any other big-time law schools or universities are doing?

My bet is that ABC doesn’t even know about a quarter of these things. And I have twenty more that I can list. Instead, ABC’s specialty appears to be going on conservative talk radio stations of 1,000 watts or less. That’s why they need you to provide “anecdotes” so they can create a “bail data” document.  While you’re there, you might ask them what’s wrong with the last sentence I just wrote.

Mostly, though, I think ABC just wants a chance to try to justify itself. But if it doesn’t have a plan for how you fit into the new world of pretrial release and detention – a world that likely doesn’t involve those really high bail amounts – then they’re just killing time until your businesses all die off.

Bail agents, the bail insurance company strategy is to get you to do their fighting for them.  It’s the only way they can keep up with bail reform and not have to pay for more lobbyists with money from their own pockets. But you should seriously consider whether the strategy of fighting everything all the time is the right strategy for you. After all, it hasn’t worked so far.  

Don’t Be Fooled, Bail Agents!

The bail insurance lobbyists have been trumpeting a letter from a judge in Illinois, in which he presented “the other side” of bail reform. Somebody sent me the letter pretty soon after he wrote it, and asked for my reply, which I then sent to everyone I knew in Illinois. He wrote 15 pages, I wrote about 15 pages.

So imagine my surprise when ABC said that the judge’s letter was a “devastating blow” to the “no money bail movement.” I mean, I read that letter, and it was full of the same lame arguments the bail insurance guys have been unsuccessfully peddling across the country for the last several years. In fact, there wasn’t a single new or unique thought. Really. Not one. You know, to me it kind of looked like the bail insurance guys wrote most of it. It even cites to Dennis Bartlett for goodness sake (I can’t imagine the bail lobbyists writing something for someone else to sign -- cough, cough . . . Paul Clement). This is no devastating blow. It’s just some judge. We knew there’d be some like him, and we know there’ll be more. Some of bail reform will require certain people to simply retire.

But my fundamental point is this. If this judge said anything new, or remotely inventive, or even something old in a better way, then you bail agents might have reason to believe that the insurance companies are on the right track. But the letter is none of that. It’s the same failed stuff. The stuff that didn’t work last week in Santa Clara. The stuff that didn’t hold any sway when the Conference of Chief Justices wrote its policy statement. The stuff that continues to get shot down everywhere it’s raised. The fact that they got a judge to say it is no big news. They’ve done that before, and that didn’t work either. These arguments will ultimately fail on the merits, not because they weren’t said by the right people.

I’ve been doing this for 10 years, and I can give you a list of about twenty arguments that the insurance guys have used that have failed. Most of them have been replaced with the current twenty, but those arguments also fail to take care of the fundamental problems people see in money bail. And I hope you all realize that because these arguments are coming from people who profit off the status quo, they demand a bit more finesse than these particular lobbyists are giving.  

Bail agents, the insurance lobbyists use things like this judge letter to make you think they’re making progress. But look around. Check out the PJI website and just look under the “recent news” section. Just today, I worked with California, New Mexico, Virginia, and Illinois. And believe me, the people in Illinois aren’t thinking that this one letter is any kind of “devastating blow.” Nobody else even knows it exists. Along with Illinois, the rest of the country is moving forward.

Don’t be fooled, bail agents. The bail lobbyists are inflating their efforts. They’re talking about minor victories while they continue to lose the big battles. And they’re definitely not thinking about your place in the “new” world of release and detention. Until you demand that they work on a new strategy, you’ll get bogus blogs talking about “devastating blows” and calling me and my friends names. I think you deserve much better from the people who make all their money off of you. 

Here's another one they won't blog about . . .

Here's another event the bail insurance companies won’t blog about.

Santa Clara, California, soon to be the model for the rest of the state.

All this was done simply by educating people, and despite fierce opposition. California is the bail insurance companies home turf, so to speak, so movement there is monumental.

Prisons, Jails, What’s the Difference?

I notice that PBUS is running a story that highlights a statement by a prosecutor saying mass incarceration is an “urban legend.” Since PBUS chose to highlight it, you’d think that the prosecutor’s argument has something to do with jails and bail, but it doesn’t. No, it’s about prisons and sentencing.

I’m always confused when bail people broaden the issue to start talking about who should be in prison and why. You know, depending on the source, only about 3-5% of defendants nationally will ever go to prison. The rest, having spent some short or long period in jail, will come right back into our neighborhoods. Those of us in bail who talk about “mass” or “over” incarceration aren’t necessarily talking about prison, so I’m not sure why PBUS would even care. No, we’re talking about jails – who should be in jail and why.

Frankly, I’m also confused when people who supposedly feel strongly about the right to bail keep bringing up reasons for why they think most people should be locked up. I don’t think that it’s bail agents saying this, even though this latest thing came from PBUS, the “voice of the bail agent.” I think it’s the bail insurance people, who have somehow wrapped up bail reform with the overall dysfunction underlying the conservative versus liberal debate in America. But really, the fact that PBUS would say that most people need to be locked up goes to a deeper issue, which is the fact that bail insurance people apparently don’t know very much about bail.

That prison/jail error isn’t unique to bail insurance companies; it’s just that they should know better. For example, not too long ago, after Dwyane Wade’s cousin was shot, a bunch of people on a news show I was watching were complaining about sentencing. Three or four different people lamented the fact that the suspects who shot Wade’s cousin shouldn’t have even been out of prison to begin with – apparently, they had been released early for different reasons. Ultimately, though, the reporter asked someone what they were going to do to solve the problem, and he said, “We’re going to ask for higher bond amounts.” I expect this kind of solution from people who don’t know anything about bail.

But do you get it? It was a sentencing issue, and people thought they could somehow solve it through bail. But you don’t solve sentencing issues through bail. And a lot of people, including, apparently, the bail insurance dudes, somehow think that you can. For whatever reason, I think the insurance companies just don’t like people. They certainly don’t like criminals. And I think they have an honest belief that these people need to be punished for a really long time. But what they don’t know is that bail is not the place to do that.

I can deal with a bail agent who tells me that he believes in the right to bail so much that even the highest risk and most violent defendant deserves to be able to mount a defense outside of jail. What I can’t deal with is a bail insurance company simultaneously saying that nobody is non-violent and that we need to lock everyone up, but then fighting to release everyone so long as they have money. It’s like they’re saying, “We really love bail, except for all those pesky releases.”

Bail agents, I don’t think that the insurance companies or the overpaid lobbyists they hire really even know your core beliefs. As I’ve said before, you guys were the answer when America faced a serious jail over-incarceration issue back in the 1800s.  We’re facing a similar issue today, and you could be part of that answer, too. Unfortunately, the insurance people don’t know how even to begin to talk about it. Apparently, they’re thinking about prisons, when they should be thinking about jails. 

Bail Agents, I Think You’re In Trouble

A recent article in the Arizona Capitol Times highlighted two things that should give bail agents everywhere concern over how the whole insurance lobbying effort is going. You can read it here.

First, when talking about the Arizona Fair Justice For All Task Force recommendations concerning pretrial justice, the head of ABC said, “If it gets wheels, we’ll get involved.” Really? Man, I was out there, like, three times in the last six months, and each time I was there the Chief Justice of the Arizona Supreme Court was actually in the room running the meetings. If you don’t think this thing has “wheels,” then I’m not sure you know what a wheel even looks like. I think the insurance guy just missed this one. Every time I was there, I kept thinking, “Where are all the insurance people? It’s like they don’t even know this is going on.” I think I was right.  

Second, the headline of the story shows how the insurance companies like to make friends: “Bail Bond Industry To Fight Change to ‘No Money’ System.” It’s the usual, “we’ll fight them on the beaches” rhetoric, and it shows that the bail insurance companies really have no interest in finding a realistic place for bail agents in the future. All they know how to do is to fight to keep the status quo. It’s the only way they won’t lose any money, and finding an alternative for bail agents that exists within a “no” or even “less” money system is simply a no-win for these insurance dudes. And yet, you bail agents have apparently handed over your entire lobbying strategy to them.

For every big thing that happens in bail, there are twenty big things that the bail insurance companies miss. And when they find out about them (or if they find out; there’s a ton that’s happened where they’ve missed even the chance to fight), they fight them like crazy. Is it any wonder that word is getting out not to even speak to them anymore? And, as I’ve often said, most people don’t separate the insurance lobbyists from the agents. When the lobbyists vow to fight, people figure you’re fighting too. You all get lumped into the big group labeled, “People Who Want to Fight Us.” Do you really think anyone really wants to talk that group?

Bail agents, I still think your interests are different from the insurance companies’, and I think that allowing these companies’ lobbyists to work only for insurance interests will ultimately put you out of business.  

Bail Insurance Lobbyist Makes History!

 

I never thought it would happen. After years – no, decades – of claiming that there are no people in jail due to lack of money, a bail insurance lobbyist said, “It does happen, so I think we need to admit that.” Historic.

Normally, such admirable truth telling would prompt a bit of praise, but in this case I just can’t do it. That’s because I know how long the bail insurance companies have claimed that there are no poor people in jail. In fact, when it comes to poor people in jail, they’ve vehemently denied it, called it a myth, and said it’s a conspiracy among bail reformers to try to put them out of business. And because of that, poor people remained in jail due to money, which messed up their lives, their families’ lives, and even the lives of the general public, who had to deal with the consequences of unnecessary detention that the insurance companies said didn’t exist.

So now we know just how long a bail insurance company will make obviously false claims just so it can make money. A really long time.

Which makes me wonder. How long will they keep spewing all their other false and equally ludicrous claims? I mean, the “no poor people in jail” claim was obviously ridiculous and harmful, but the insurance lobbyists cited studies, gave presentations, and even provided testimony trying to get people to believe it. Is that it? Do we have to wait ten or twenty years on every bogus claim until they finally realize that nobody believes it and they have to give a retraction? Don’t they realize that their ruining people’s lives? This isn’t like other businesses, you know. Lying about bail has real consequences.

And now they think they should start a bail fund. Wow (please visualize me doing a double take or spewing milk out of my nose). I mean, WOW! You do realize, don’t you insurance dudes, that bail agents everywhere have had the ability to start a bail fund for the last 100 years. It’s called waiving the fee.  

The insurance lobbyist said, “We can do some good if we put our mind to it,” but the bail insurance companies are beyond just doing good to make up for the disastrous, decades-long lobbying effort designed to keep money in the system. I mean, where was this realization that poor people are in jail when they were trumpeting their “big victory” in Georgia through a new law forcing judges to set money bail?  

Bail insurance companies, if you want to do some good, quit acting like you’re interested in pretrial freedom while you argue that there are no nonviolent criminals and that everyone in jail belongs there. Quit acting like you care about release while you push a system that historically keeps people in jail. Quit saying you care about defendants while you make fun of how they look in their mugshots or sing songs about how idiotic they are. And quit paying lobbyists to say any ridiculous thing just to keep the money rolling in.

Just quit.

Do America a favor and just quit.

A Big Week

A few weeks ago, the insurance company dudes trumpeted their brief in the 11th Circuit Court of Appeals. This week about seven groups filed briefs for the other side basically saying that the ABC brief was full of it. No slouch groups, either. The United States Department of Justice, the Southern Poverty Law Center, the Pretrial Justice Institute and NAPSA, and the American Bar Association. And that's in addition to the appellee brief, which blows the City's brief out of the water. I used to write court opinions for the 10th Circuit Court of Appeals, so I'm sort of used to assessing briefs.  

Oh, yeah, and I filed one too. I did mine for free, by the way, and I took great care to point out to the court how ABC was intentionally misleading it. That's something it probably didn't mention to Paul Clement when it asked him to be their lawyer.

Also this week the state of Arizona issued it's report about bail, fines, fees, and costs. The Chief Justice is running that show, and everyone is on board. Of course, PBUS says, "don't believe this bunk." Really? Did you see who signed off on that report?

Well, you better believe it. I can't even keep up anymore. The insurance companies only tell you about the two things that they do (including interviews on 10 watt talk radio stations), and they leave out the 50 things everyone else is doing, like big time state reports led by a Chief Justice.

When you're in as deep as me, you occasionally have time to talk to others about sort of tangential things. Like the other day. I was with a friend of mine who's also neck deep in bail, and we both started talking about what we would do if we "switched sides." You know, if we decided to cash the big check and go work for the insurance companies. It turns out we actually know at lot that would help the industry stay afloat. The weird thing is that the insurance companies have never even tried any of our ideas.

One particular idea, though, really got my attention. It was what I would call a "pure genius" move, and simply by doing it, it would keep commercial bail flowing in America for another 20 years. I hadn't really thought about it before, and the bail insurance companies certainly haven't thought about it. Their strategy is to fight everything. Call everything bunk, like that'll make it go away.

Tell you what. I'm not going to say what the genius move is, but I'll write about it if I ever see it. Here's a hint. If you were at the 2011 Conference on Pretrial Justice, someone mentioned it in passing. Does that help?

Overall, I'd say this has been a pretty big week.

Bail Reform in USA -- Today!

I know it's a bit late, but here's a link to a great opinion piece in USA Today, written by Cherise Burdeen of PJI and Bruce Beaudin, a true pioneer in the pretrial justice movement.

Last week I helped people in over twenty states. And as a reminder to those of you fighting the change -- I'm just one person, I do it mostly for free, and I don't think I'll stop until it's done.

Burning Bridges?

The recent studies showing the ill effects of money on the pretrial release and detention decision remind me, once again, to address an argument I occasionally hear from the bail insurance dudes. First they say nobody’s in jail due to money. Well, that’s a load and they know it, so they move on to argument number two.

Argument number two says that if a defendant’s in jail due to money, it’s not because he’s too poor – it’s because he has lots of previous problems and has “burned all his bridges” with family and friends who would typically come to his aid by fronting the money. It’s a derivation of the “circle of love” they like to talk about, but I suppose you’d have to call this a circle of hate. Or, like, a ring of resignation. You know . . . something.

Setting aside the fact that having “burned one’s bridges” is not a constitutionally valid purpose for detaining someone pretrial, the argument also misapprehends the most egregiously unlawful part of bail today, which is the fact that the money amounts are typically completely arbitrary.

So the argument by the lobbyist goes something like this: if a defendant gets released, he hasn’t burned his bridges, and so it’s okay he’s out (even though the same lobbyist might whine that the amount might have been “too low.”) Okay, so let’s say that the amount showing “no burned bridges” is $1,000. The problem is that a judge can simply add another zero – in fact, he or she can do that for virtually any reason or no reason under our current system – and the result can be much different. Now he’s in, and the bail lobbyist says that’s okay because he burned his bridges. Really? The new amount means that the same defendant now suddenly has burned bridges? Or could it possibly mean – and this is just a guess here – that he and his circle simply can’t afford the $10,000 but they can afford the $1,000? So the bridge burning has little to do with the defendant; it’s apparently really only tied to the amount chosen by the judge, which is arbitrary and subjective. I mean, what if the judge started with $10,000 (leading to detention) and then moved it down to $1,000 (leading to release)? Can we now say that the defendant, while in jail, has done the opposite of burning bridges? He has, instead, created new positive relationships?

Because I’ve heard this argument before, the next part says, “Well, when the judge set the $10,000 financial condition, that judge knew that defendant had a bad past and so the money was exactly the proper amount to be beyond reach of the defendant and his family.” Now, putting aside the fact that setting an amount to be purposefully beyond the reach of a defendant or his family is unconstitutional, I also think it’s putting a lot of faith into a judge to be able to determine not only the defendant’s wealth, but everyone else’s. And remember, if that judge only bumped the amount up to $2,000, the defendant might still make it and then everyone would still have to say that he didn’t have any burned bridges. Do you see how slippery this gets? Based on the bail lobbyist’s theory, this defendant might have burned his bridges at exactly $1,323.47, but not at $1,1145.48. And the judge set it at $10,000, so we’ll never really know.

Or maybe – just maybe – there are certain amounts people can afford and certain amounts people can’t afford. Welcome to a common sense explanation of money bail, which says that if you use a money-based system, people with money will get out and people without money will stay in.

Historically, money at bail became arbitrary after the Norman Invasion. Before the Normans, all punishments were fines, and so if someone set a bail amount, it matched the amount of the fine. Once the Normans got rid of the fine-as-punishment system, moving toward a system that used more capital and corporal punishment as well as prison, nobody knew what number to “set.” What should the “bail” be for someone facing a thirty silver piece fine? Easy. Thirty silver pieces. But what about a person facing a flogging? Who knows? And it’s been that way ever since. In the 1950s, Caleb Foote even commented on how the judges’ use of round numbers hinted at the inherent arbitrariness of money bail.  

Studies consistently show what logic should suffice to tell us: there’s an inverse relationship between the amount of the financial condition and the ability to obtain release pretrial, with release going down as money goes up. Think of it this way. If a judge set everyone’s financial condition at $1, practically everyone would get out and what their families felt about them wouldn’t factor into it. And if that same judge set every bond at $10 million cash, practically everyone would be stay in, and what their families felt about them wouldn’t really factor into it, either. Most people would say that the last example is clearly unconstitutional and would never happen, but we come close to that every day in jurisdictions with bail schedules having amounts in the hundreds of thousands of dollars. Oh, yeah, and we also see plenty of million dollar bonds.

Other studies allow us now to actually measure a defendant’s risk of flight and risk of committing new crimes, the only two constitutionally valid purposes for limiting pretrial freedom. And using those studies, researchers have gone into jails and found low and medium risk defendants who can’t get out due to money. In jurisdictions using money bail, you also see extremely high risk defendants getting out simply by paying money. Oh, and by the way, none of those risk instruments have “burned bridges” as a statistically predictive risk factor.

This argument – that if a defendant can’t pay, it’s because he’s burned his bridges and so he must be an unmanageable risk for flight or new crimes while on release – is a backassward argument attempting to justify an arbitrary money system that has nothing to do with either flight or public safety. There’s one good way to measure risk – through a statistically-derived risk assessment tool. There’s one bad way – through how much money a defendant or his family has. And there’s one stupid way – through how many “bridges” we think a defendant has “burned.”

By the way, always remember that one way to make a financial condition non-arbitrary is to make it affordable to the particular defendant (or, I suppose, the defendant’s family). Seems easy, but judges have been unable or unwilling to do that for the past 150 years. 

Two States in One Week!

Last week two different states asked me about things a bail insurance lobbyist said. It was the usual shtick for this lobbyist: surety bonds are more effective than anything else, and Jefferson County, Colorado (where I’m from) is a failure.

I explained to both states how the lobbyist is intentionally misleading them on both issues. I’ve written about this before, so there’s no need to explain it now. By now this lobbyist should know what he can and can’t say. He knows and he simply doesn’t care.

But think about it for a minute, because it appears he doesn’t care much about bail agents, either. I mean, really – intentional misrepresentation. By the time I get done explaining it, people get pretty mad. And they can’t distinguish between the lobbyist and a bail agent. To them, the industry lied to them, and so that’s a couple more people – big, important people with a lot of say about how pretrial release and detention will be done – who’d rather not even bother with commercial sureties.  

But I don’t stop there, because then I tell them about all the stuff the bail lobbyist isn’t telling them. Like why the so-called “Dallas Study” is so messed up ( I have a really great story about that one), how other states are issuing reports about pretrial justice that don’t include the industry and that the industry ignores, and all the slippery things they did in New Jersey to try (yes, they failed) to reverse course over there. And, by the way, I’m not the only person these states ask. There are hundreds of us, and we all have the same big knowledge base that makes these lobbyists look like they’re basically making it all up as they go along.  

Bail agents, I know you probably think these guys are acting in your interest, but they’re flailing, and in the process they’re taking you down.

Sandra Bland: Her Bail Amount "Was Not Significant"

I just watched Sandra Bland's mother address the Democratic National Convention, and so I decided to re-run the blog I wrote about her one year ago. The bail insurance lobbyist called the article about her death a "strawman" article -- nice. 

Oh, and by way of update, a while back the jail actually said that it wasn't negligent when Sandra died in their custody. Instead, attorneys for the jail actually tried to pin the blame on Sandra's family and friends for their "refusal" to bail her out. 

Her bail amount "was not significant." 

No, I didn’t say this – a bail insurance company lobbyist did. The quote, in full, is actually, “The issue of bail had nothing to do with this person’s suicide, in my opinion. The amount was not significant and the family was working with a bondsman to post bail.”

This gives you a bit of insight into the people behind our traditional money bail system. Bail insurance company lobbyists could really care less about the humans who bear the brunt of a broken system of bail in America. Let’s break this quote down.

“Not significant?” Well, it kept her in jail, so I think that’s pretty significant. The most interesting conversations I have with commercial bail people happen when they talk about amounts that are “significant” or “reasonable.” Some time ago, a commercial bail guy came to our local county justice meeting and, with a completely straight face, said, “The other day I saw a judge set bail at $50,000, which is reasonable, but another judge set another bail at only $500, and that’s just wrong.” To a bail insurance company lobbyist, amounts are reasonable when they can make money off of them, and they’re unreasonable when they can’t. And only an overpaid lobbyist could ever say that a $5,000 financial condition isn’t significant.  

“Working with a bondsman?” Well, there’s an article out there saying that some bondsman actually called Sandra’s mother, but that was it. I assume the phone call went something like this: “Your daughter’s bail is $5,000, so to get her out of jail you’ll have to come up with a $500 non-refundable fee for me and then put up some collateral to cover the rest.” These kinds of conversations happen every day across America, and they’re why it takes an average of 10 days for people to bond out through commercial sureties. And in those ten days, research has found, a lot of really bad things can happen.

“The issue of bail had nothing to do with [Sandra’s] suicide?” The bail insurance guy says that “there were clearly other issues [going] on in this person’s life.” What kind of issues? Everybody has issues going on in their lives, and no matter how significant those issues are, you can bet that if the person is stuck in a cage, incarceration is issue number one.  

This is the problem with bail insurance companies – the groups who lobby hard to keep the commercial money bail system alive in America – they simply don’t have any compassion or common sense. It’s a problem that we’ve had with this industry ever since we created it in 1900. And it’s a big problem in Texas, which is kind of an enclave for bail insurance companies and the lackeys that these insurance people hire to try to muddle and spin the tragedy of money bail.

Let’s face it. There’re at least three big issues that need to be addressed concerning the death of Sandra Bland: (1) her arrest; (2) the nature of her detention; and (3) the money bail that kept her in jail. Because bail insurance companies make money on number three, they’ll be hoping that everyone – including you – will focus only on numbers one and two.

Don’t do it. 

Fourth Floor -- Ladies Lingerie!

I got on the elevator the other day with a bail insurance guy. He started talking about commercial bail, and the whole thing went like this:

On the first floor, he said, “Commercial bail is the lynchpin of the criminal justice system”

I said, “Well, no, not really. I’d say the lynchpin is the constitution, and even though bail’s in there, commercial bail isn’t.”

On the second floor, he said: “I believe the system of bail is in place not for the accused as much as it is for victims, society and the interest of justice.”

I replied, “You see, this is where it helps to know something about the constitution. The right to bail is reserved for people accused of crimes. Saying it’s not is like saying that the right to speedy and public jury trials, the right to confront witnesses, and the right to assistance of counsel aren’t for defendants but are mostly for victims and society. Is the right to be free from cruel and unusual punishment in there for victims? All that stuff is in the constitution to keep the government in check. Now, the government can limit pretrial freedom to protect victims and society, but commercial bail doesn’t have anything to do with protecting anyone.”

On the third floor, he said, “While mistakes happen, the impetus for an arrest is probable cause and therefore on its face, justified.” 

I responded, “I don’t know why you even say this. It’s like you’re trying to come up with excuses for why certain defendants never get out of jail even though they’re bailable. You know, based on this statement and the last one, I’d say you guys don’t even believe in the right to bail. We’re getting kind of high up. Are you dizzy?”

On the fourth floor, he said, “The accused has a right to reasonable bail if a capital offense was not committed.”

I answered, “Well, I’ll give you one this to speed things up. The right to bail in America’s pretty complicated, and I’m beginning to think you don’t even really know what it is.”

On the fifth floor, he said, “Society has a right to know the accused will appear for trial.”

I retorted, “True, but society has a right to be protected, too, and commercial bail has nothing to do with that. Society also has a right to know whether their jails are being run lawfully and efficiently, and commercial bail gets in the way of all that. Members of society have a right to know that if they get arrested, they won’t be treated unconstitutionally, and commercial bail gets in the way of that, too.”

On the sixth floor, he said, “The most effective means to insure the accused appears for trial is a fully guaranteed bail bond backed by an admitted surety company and executed by a licensed bail agent.”

I rebutted, “That’s not true. You’re relying on those studies that the feds said you can’t rely on anymore. But even if commercial bonds are helpful at getting people to court, they have nothing to do with public safety, and they really hinder release. There are only three purposes underlying bail, and commercial surety bonds fail miserably with at least two of them.

On the seventh floor, he said, “Unsecured releases do not offer a guarantee and are akin to an air sandwich.”

I countered, “Mmmmmmm ……. air sandwich.”

“Seriously, though, you’re forgetting about all those other things we use to motivate people to come back to court, like new charges, contempt, pretrial services agency supervision, and all those nonfinancial conditions that we came up over the last 50 years. Risk is inherent in bail. There’s no guarantee. There’s only stuff that’s fair and works, and stuff that isn’t and doesn’t. Commercial surety bonds are unfair and they don’t work. The same concept is true with any condition of release. If the GPS monitors don’t work, we won’t use them, and we won’t tolerate GPS manufacturing lobbyists nosing around trying to force people to use them.

On the eighth floor, he said, “Only commercial bail bonds guarantee the production of the accused in court or payment of the bail amount when an offender cannot be produced.”

I said (ran out of synonyms), “Guarantee?! Who are you kidding?” And I started talking about most people coming in on their own, law enforcement bringing in the rest, forfeitures, exonerations, insurance company pay-out rates, etc.  . . . . .

He got off.

The current system of commercial sureties administering mostly secured bonds hasn’t worked since America implemented it in 1900. There’s a future for bail agents in American pretrial release and detention, but they’ll have to ditch the insurance companies. Even their elevator speech is messed up.

PBUS Elected the Wrong Person

“People are not in jail because they’re poor. They’re in there because they broke the dang law.”

With that one quote in a recent Marshall Project article, the head of PBUS just proved to the world that she knows little about bail, and that she’s bought into the bail insurance company slash and burn rhetoric designed to fight literally any changes to the status quo.

Let’s get this straight, because I know deep down that bail agents care about release. When America started running out of personal sureties, it was commercial bail bondsmen and women who stepped up to help. When judges set amounts of money that were unattainable by most defendants, it was bail bondsmen and women who stepped in where even the Excessive Bail Clause could not, and tried to make sure that people could still get out of jail. Yeah, I know that states gradually started putting insurance companies in the mix (slowly turning the bondsmen and women into agents), but it was the spirit of those early bail bondsmen and women, who really cared about the right to bail, the presumption of innocence, due process, and pretrial freedom, that should be the enduring spirit of bail agents today.  

It’s the bail insurance companies that don’t know what they’re talking about. It’s the bail insurance companies that once wrote that they didn’t believe in the presumption of innocence. It’s the bail insurance companies that don’t believe in risk assessment even though they use it for every other form of insurance. And it’s the bail insurance companies that are now starting to peddle the moronic line, “the defendant is in jail because he broke the law.” Bail agents should look at this sort of statement and say, “No, this person isn’t convicted yet, and so we should all do what we can to see that he or she is released, because, after all, we live in America.” At that point, we’d disagree about how to do that, but you get what I’m saying, don’t you?

By parroting the bail insurance company line, PBUS might as well just be a shill organization for those insurance companies and ABC. And, really, those guys could care less whether you bail agents survive so long as they keep making their money.

The insurance companies could be helping you, agents, but they aren’t. You know that, and I know that because I’m a part of various projects begun in the wake of insurance company fights. The weird part is that I can actually visualize a future with bail agents taking a giant part in productive bail reform, breaking away from the insurance companies and talking about how to effectuate pretrial release and detention without the kinds of astronomical amounts that require freakin’ insurance companies to back.

But I can’t expect that from PBUS anymore. No, PBUS elected the wrong person. 

Did They Post Something About This?

While the bail insurance lobbyists were busy touting the filing of an amicus brief in an 11^th Circuit Court of Appeals case (big deal, by the way – I read that brief and it contains all of the same tired arguments that have failed everywhere else, so they really should stick to their specialty of backroom lobbying), this happened. 

Among other things, this settlement calls for the end of money bail on all misdemeanor offenses in Jackson, Mississippi. 

Get Used to This Kind of Thing

The Arizona Court of Appeals issued an opinion the other day – found here – that basically holds up parts of Arizona’s bail law against the United States Supreme Court's opinion in U.S. v. Salerno, and concludes that the state provisions lack due process.

Get used to this. Virtually every state has a “no bail” provision that is likely deficient in some way when held up to Salerno, and it’s only a matter of time before other states and federal courts start saying so. Think, too, about all those states that have “no bail” provisions that are routinely ignored by judges who would rather use money. Ain’t no due process in that kind of pretrial detention, either.

It’s these kinds of things that, long ago, caused me to write that bail reform is inevitable. It's still true. All the markers are there, and you simply can’t avoid it. 

Fundamental Cracks in the Foundation?

The American Bail Coalition put out its midyear report on all the “failing efforts to eliminate the constitutional right to bail.” I suppose if they reported on all the “successful efforts,” it’d be longer and harder to write. But that’s why I’m here. To correct the record!

First of all, though, nobody’s trying to eliminate the constitutional right to bail. The right to bail isn’t a right to money, and the insurance companies know that. As the U.S. Supreme Court said, it’s a right to release – a right to “freedom before conviction.” And it just so happens that money gets in the way of release and freedom. If anything, eliminating money greatly enlarges the right to bail. We’re not eliminating the right to bail. We’re making it meaningful.

I’m not going to go point-by-point through their whole report and show how these insurance lobbyists mislead all the people they’re hoping to convince are on the right side. For example, if you really liked money bail, and if ABC told you the whole story behind New Mexico, you’d be pretty concerned. Or the federal money bail act – did you really think something like that would pass in an election year by this Congress? Goodness gracious, if they actually paid a lobbyist to work against that bill, they’re dimmer than I thought.

Instead, I’m just going to list all the states that are making progress reforming the bail process that ABC didn’t even mention. Here they are:

Alaska, Oregon, Nevada, California, Arizona, Wyoming (yes, I’ve talked to them), Colorado, Pennsylvania, Virginia, Delaware, South Dakota (albeit minor stuff), Wisconsin, Kansas, Nebraska, Texas (watch out for Texas), Missouri, Kentucky, Illinois (I know a couple of big time bail reformers out there right now), Ohio, Indiana, North Carolina, Maine, Massachusetts, Hawaii (just talked to them, too), West Virginia, Minnesota, and Alabama (well, one county, but you also have to count the lawsuits). Oh, and don’t forget Guam! Mighty Guam is leading the charge.

In fact, I only counted 15 states that aren’t doing any bail reform, and those are just the fifteen I personally don’t know anything about. Ask PJI, or NIC, or a few other groups, and they’ll probably add a few to my “bail reformer” list. Oh, yeah, and you probably have to add a few more of the 15 to that list simply because they’re getting sued. That sort of thing leads to bail reform, too.

My dad was a lobbyist, and my brother is a lobbyist, so I know that lobbyists have to periodically make reports showing a certain amount of success. I expect it. But the time is running out for these particular bail insurance lobbyists to help their bail agents make any kind of transition into the brave new world of pretrial supervision.

For over 100 years, the “foundation” of American bail has been secured money bonds. But all of that is changing. There are fundamental cracks in the foundation, all right, but they aren’t the ones the insurance lobbyists want you to focus on. 

Hey, Bail Agents, Did the Insurance Companies Blog About This?

You bail agents are certainly getting a lot of stuff handed to you through the various bail insurance websites and Facebook pages. If that’s all you end up reading, you’re probably going to think that they’re winning their battle to keep the status quo. But here's a link to an event those insurance company lobbyists probably didn’t blog about. It’s the Washington Supreme Court’s Minority and Justice Committee’s hearing called, “Pretrial Justice: Reducing the Rate of Incarceration.”

This takes a bit of time to watch – over 3 and a half hours – but if you do, you’ll start to get a feel for how this whole reform business is going. Think about who was in the room: Supreme Court Justices. Think about who wasn’t in the room: bail insurance lobbyists lamely trying to push their various “research studies” concerning money bail. I suppose if those studies were any good, someone else might have mentioned them, but that didn’t happen. Instead, if you watch the video you’ll hear some interesting quotes, like:

“Money bail clearly does not work.”

“I do not believe in money bail. It does not work.”

“Although it may be possible to design a money bail system that does not regularly violate the constitution, we haven’t seen it yet.”

These types of investigations, hearings, and exploratory educational efforts are popping up all around the country. So many that I’m having a hard time keeping up with them.

So ask your insurance companies what their strategy is to lobby state Supreme Courts. More importantly, ask them what they’re going to do when everything does change. Remember, there may be a place for bail agents in the future of American pretrial release and detention, but there’s no place for bail insurance companies. That’s why their goals are not your goals, and it’s why their strategy is only hurting you. 

Bail and Human Dignity

Here’s a link to two pretty great reports put out by the John Jay College’s Prisoner Reentry Institute and the Arnold Foundation. The first is called, Pretrial Practice: Rethinking the Front End of the Criminal Justice System, and the second is called, Pretrial Practice: Building a National Research Agenda for the Front End of the Criminal Justice System.

I was at the conference leading to the first report, and a bunch of us submitted papers. Interestingly, though, the whole thing started revolving around a single issue, which was the need for more human dignity in the criminal process. It began with a discussion of Jonathan Simon’s paper on pretrial dignity, and pretty much continued on that theme for the rest of the conference.

I only mention that because I see that ExpertBail, a network of so-called “professional” bail agents created by AIA Surety to challenge the public’s negative perception of those agents, continues to post pictures and make fun of how defendants look on its Facebook page – pretty much the opposite of caring for human dignity.  

Do you really wonder why the insurance companies are losing this fight?

Bail Documentary

Here’s a link to a short but powerful documentary on bail. It's called Limbo. Please note, as you watch, how incredibly sane the jail commander sounds as he explains that the people swept up into the discriminatory money bail system are actually our family, friends, and neighbors.

This is, of course, in stark contrast to the thinking of the bail insurance company lobbyists, who, when pressured recently, have decided to change their rhetoric to mirror various right-wing “tough on crime” sites that apparently don't think we lock enough people up. I honestly get the feeling that those groups aren’t so much conservative as they’re just full of hate for people generally. Conservatives want to follow the constitution. These people are just pissed.   

The problem for the bail lobbyists, though, is how to square the various ideas they’re parroting – like the idea that there are no true “non-violent offenders” and that being arrested makes someone a criminal that somehow deserves a litany of pretrial abuses – with the more prosaic notion that they’d kind of like everyone to get out of jail by paying some money. The more they’re pressed, the more you see that they really just don’t like criminals, which, to them, includes “accused criminals.” Well, what if those accused criminals have a bit of cash? “Oh, well, then that’s different. They may not be nonviolent, but at least they’re rich enough to pay us.” Crazy.  

I might be wrong, but I think bail agents and I have a few things in common. For example, I believe we all like the right to bail, the presumption of innocence, and the various foundational American rights articulated by our state and federal constitutions.

The bail insurance companies haven’t really bought into all that, though. And because they don’t like criminals, but they do like taking money from the people they call criminals, they’re having a hard time coming up with coherent arguments now to keep the present system in place. 

By the way, this documentary is only about 5 minutes long. Using money bail, a judge could unconstitutionally detain about 30 people in the time it takes to watch it. 

The End of Money Bail?

We interrupt this normal break between blogs to give you a link to a Pretrial Justice Institute's press release, which discusses not one, not two, but three separate studies illustrating the flaws and damaging effects of money bail.

Please note all of the important people who signed onto the press release. And that's on short notice! A lot of those people were with me last week as we discussed the end of money bail.

Happy reading!

Lesson One: Read the Whole Thing

The bail insurance company lobbyists recently highlighted a story in the Pueblo (Colorado) Chieftain about pretrial release. I think they highlighted the story because of its headline – “Cops: Dangerous Criminals Getting Out of Jail Too Early.” The problem is, though, the lobbyists apparently didn’t read the rest of the article.

Yes, the Pueblo Chief of Police said he thought that certain people were “getting out on lower levels of bond that should not get out” (a statement that only illuminates the flaws in Colorado’s legal scheme, which unwisely allows the release of extremely risky defendants with money), but he said the real problem was that the pretrial services agency WASN’T BEING RUN BY IN-HOUSE COUNTY EMPLOYEES. Yeah, that’s right. 

You see, the Chief and the Sheriff had both recommended that the County implement a pretrial services program run by the government. You know – those things the lobbyists like to call criminal welfare agencies and all that. The Chief and the Sheriff apparently wanted to model it after the one in Mesa County, Colorado, a government run operation that is quickly becoming a national model. Instead, the County awarded a contract to Rocky Mountain Management Offender Management Systems (RMOMS) a private, for profit pretrial services entity. According to the story, law enforcement’s big beef was that a third party outfit was doing the work that law enforcement apparently thought the government should be doing.     

So the first lesson from all this is that the insurance lobbyists apparently don’t even read beyond the headlines. The second is something I’ve been harping on for a long time: if bail agents want a future in pretrial release and detention in America, it’s going to be doing the same sort of thing that RMOMS is doing, which is exactly what the courts want – assessment and supervision of criminal defendants who are ordered released. There are only about 350-400 pretrial services agencies in America, but there are roughly 3,000 counties. And those counties want assessment and supervision, period. But it’s got to be supervision for both court appearance and public safety, it’s got to handle everyone, and it’s got to work despite dramatically falling bail amounts.

The bail insurance companies won’t help you with this, bail agents. There won’t be any need for insurance backing, so they’ll continue their rapidly failing fight for the status quo, while companies like RMOMS show what a true “public/private” relationship looks like. 

I’m only going to keep warning you for so long. Last week I was with representatives from nearly 15 state supreme courts (including a half dozen or so Chiefs), and they were are all talking about moving toward the new model – risk-based assessment and supervision, and less or no money. You can either be a part of it, or you can sit back and hope the insurance companies will stop the whole thing in its tracks. You decide.