The American Bail Coalition
just sent out a memo trying to put bail agents at ease in the face of a growing
number of federal lawsuits undoing money bail in America. In it, ABC raises a
few points that are worth a second look if you’re a bail agent.
First, ABC says that the San
Francisco suit is only about bail schedules, and not about abolishing what a
recent article called “cash bail,” necessarily extending to surety bonds.
Later, though, ABC says it helped the California Bail Agents with its motion to
intervene in San Francisco, and that particular motion states: “If Plaintiffs’ requested preliminary
injunction is granted, Proposed Intervenors’ entire industry would be
destroyed” and “Not only would that destroy
Proposed Intervenors’ entire industry, but it could undo thousands of existing
bail surety contracts whose purpose would be declared unconstitutional.” ABC
knows what’s going on. They just don’t want you bail agents to figure it all
out.
Second, ABC says that it’s worked
tirelessly with virtually every criminal justice stakeholder group to oppose
the federal suits. Really? Why, then, has virtually every criminal justice stakeholder’s
national organization published policy statements advocating adopting a risk
based versus a money based system? Believe me, ABC is alone in this thing. It’s
their lobbyist working with its member insurance companies’ other lobbyists
trying to figure out a way to keep the money rolling in.
Third, ABC says that it’s prepared
all kinds of legal documents that it wanted to get into some earlier federal cases,
but it couldn’t because those suits were settled too fast. Yeah, right. I’ve
been watching ABC for a while now, and it has mostly regurgitated the same
tired arguments for the current system (ABC calls them showing the "fatal flaws" in the claims of reformers) and has consistently lost by doing so. It
lost here in Colorado, it lost in New Jersey, it lost in New Mexico, it lost in
Wisconsin, it lost in Indiana, it lost in Utah, and it’s losing in virtually
every state it jumps into. If there are "fatal flaws," as ABC says, don't you think it would win every so often? So ABC will continue to lose – and to take bail agents
down with it – as long as it continues to argue for the status quo. “The
American Bail System works,” ABC says, but that’s absolutely false. The
American bail system hasn’t worked since 1900, which is why we’ve witnessed
generation after generation of bail reform since then. Think about it, bail
agents, if it were working, would some 25-30 states be calling me asking how to
change their entire bail statutes and constitutional bail provisions? Saying that bail is working when everyone else
says it isn’t working makes people think that the insurance companies don’t
have a clue.
Finally, ABC says it’s hiring
(meaning that it’s using the money that you bail agents give them to hire) “national
federal litigation counsel” to try to get into these suits so they can further argue
the status quo in court. Now I used to
work for the federal courts, including for the federal court of appeals, and
intervening into a suit isn’t the easiest thing to do. Think of it this way. At
their core, the suits are challenging judicial bail setting practices (some
admittedly delegated). Does that mean we let everyone in the suit who has some
remote interest in bail setting? Do we let in the GPS monitor manufacturers?
How about drug testers? How about the people who make lunches for the inmates
in jail? For goodness sake, if we lower the jail population, that lunch-making
industry might fail.
The bottom line is that the
bail industry is tangential to the actual decision to release or detain a
defendant. To the extent that it isn’t – meaning to the extent that the bail
industry has actually usurped the judicial decision itself – then it shouldn’t
be allowed to exist in that form anyway. And what if ABC does get in? Well,
even then it’ll probably just keep saying the same old stuff – “money bail works,” “money
bail’s fair,” “everyone else is wrong.” They’ll keep spending money to say
these things right up until they’re making exactly the same amount of money
that they’re paying their last lobbyist. And even then, they’ll probably just
hire a cheaper lobbyist.
ABC wrote a funny line at the
end of its document. It said that those of us seeking change are “bastardizing”
our criminal justice system and “abandoning the American bail system.” Not
true. The changes that we seek – and by “we” I mean people like me and all of
those stakeholders I mentioned earlier – are based on fundamental
constitutional and historical American legal notions, such as due process,
equal protection, the right to bail, and the presumption of innocence. If it
takes a federal court to tell the states just how far from these notions they
have strayed, then so be it. Moreover, we aren’t abandoning the American bail
system. No, we’re just returning to the American bail system that existed before
the commercial bail industry got involved, when unsecured bonds assured that virtually every bailable defendant
would not be jailed for failure to pay money.
ABC is spending a lot of time and
money to keep things the way they are. The problem is that nobody else in
America wants to keep things the way they are. If I were a bail agent, I’d try
to figure out how much money I give the insurance companies, and then I would
spend that money, instead, on redefining my role in pretrial release and
detention in America. There may be a place for private pretrial in America, but
the window for finding that place is rapidly closing. By refusing to accurately
see the future, ABC is practically slamming that window shut.
