Thursday, January 28, 2016

What’s Wrong with the PBUS Agenda?

I just received a copy of the 2016 PBUS Winter Conference Agenda, and it includes a breakout session called “Lessons from Beyond New Jersey: Understanding the Arguments and Solutions of the New Generation of Bail Reform and Pretrial Release.” More specifically, it says the panel will “inform bail agents of the threatening arguments being made against the bail industry, arm agents with the ‘new’ vocabulary to use against such arguments and most importantly, educate bail agents about what solutions can be offered to minimize threats affecting the bail industry.” A good topic, right? What could possibly be wrong with it?

Well, for one thing, the person listed first on the panel is an insurance lobbyist who used to run the American Bail Coalition, which is no friend to bail agents. In fact, when I first started working in bail reform, ABC’s main stance was that there was no bail reform movement, there never would be, and that there was no reason for anyone to worry. It got that issue pretty wrong – the PBUS agenda is now calling it a “new generation of bail reform,” something I figured out and published five years ago. Since then, ABC has been wrong about a lot of things.

This generation of bail reform, as most of you now know, is not so much a fight against bail agents as it is a fight about money at bail – which is why the statement on the agenda of all the “threatening arguments against the bail industry” is so misleading. For example, I know the people working on the constitutional amendment in New Mexico, and they rarely talk about the commercial bail industry. Instead, they find fault with the lack of public safety in a money-based system and with secured financial conditions that not everyone can pay. So if you get to the panel on lessons from New Jersey and all they talk about is how to fight to keep things essentially the way they are today – with bail agents only involved with arbitrarily inflated financial conditions, with your focus only on court appearance and not public safety, and with insurance companies making money for doing nothing – then I hope you’ll ask them to give you some other ideas.

The real lesson from New Jersey – and now numerous other states – is that when people are fully educated in bail, they automatically move toward change, and that change involves adopting a risk-informed system of pretrial release and detention (both for assessment and supervision) using less or no money. This lesson is playing out across the country, and I can’t even keep up with the states, entities, and persons who are all going in the same direction. By arguing to keep things the way they are, ABC is on the wrong side of history.  

I’m about the only one saying this, but I’m being honest. A true private/public partnership in bail is only possible through what I call “private pretrial.” Some of my public pretrial friends don’t like when I mention it, and others don’t care because they don’t think you can pull it off. But I do, and I’ve seen it work. I’ve written about it enough that I don’t have to explain it here, but realize this: because the bail insurance companies wouldn’t exist in a “private pretrial” world, they’ll tell you that it’ll never work and convince you to keep fighting for the status quo.

Last month alone I worked with the White House, DOJ, five different states (of over 20 states that I worked with last year), and numerous public and private entities trying to “fix” bail, and they all intend to make major improvements because they don’t perceive anything valuable about the existing system. Meanwhile, the current head of ABC was on some funny little radio show calling bail reform “an epic battle” and arguing that if we dare to move from the way things are, we’ll be “setting a course for planet hell” and be required to create “state and local level U.S. Marshall’s Service” to go catch all the inevitable skips. Okay, maybe talk radio is made for hyperbole, but man, that last part is just plain crazy.

Don’t be fooled, bail agents. The bail insurance companies will use the “war against you” analogy simply to get you riled up to fight the bail insurance companies’ fight. But their fight is simply not in your interest. If you only believe one thing that I say, believe this: no matter what the bail insurance companies say, most states have decided that the current system – with all of those huge amounts of money based on charge – is fundamentally flawed, and so it’s going to change. Your goal should be to see where you fit into the new system. Arguing for the status quo, which is really the only argument the insurance companies have that will continue paying for their executives and their lobbyists, will ultimately only ensure that you’re not any part of the system we create.  

So what’s wrong with the PBUS agenda?  Well, from here it looks mostly as if the panelists on bail reform are going to try to convince you to fight to keep the status quo – to “arm” you with a new vocabulary, to help you to counter various arguments and to “minimize threats” to the way things work today. But they don’t seem to be offering any advice on how you can fit in when the country makes its inevitable shift. I won’t be there, but maybe you should ask them about all that.