Thursday, January 7, 2016

The American Bail Coalition -- San Francisco and Beyond!

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.