Goodbye Justice Scalia

We interrupt this bail blog to say goodbye to Justice Antonin Scalia.

I met Justice Scalia at the Supreme Court, on a night in 1988 when the Court was holding a mini-premier of a PBS documentary called, “This Honorable Court.” My mom was on the guest list because she’d been a state chairperson for the Bicentennial of the U.S. Constitution Commission. I lived and worked in D.C. at the time, and she got me in.

We were standing in the Great Hall, the “lobby” of the Supreme Court, and I had made my way to a place where I could see what was going on. Suddenly, a man sidled up next to me – smoking – and relentlessly cracking jokes about virtually everything being said during the ceremony. I saw who it was, and so I quickly gave up any hope of either shushing him or telling him not to smoke. In fact, I liked his jokes, and he must have known that I liked them, because he kept telling them for about 15 solid minutes. I learned later that this sort of interaction was the norm for Antonin Scalia, who lived life in the moment, and who cracked jokes like nobody else.

I met William Brennan and William Rehnquist that night, too, but I’ll remember Antonin Scalia the most for trying to show me that Supreme Court Justices are just like everyone else. Except for the fact that they aren’t. In fact, the biggest joke of all would be to think that Justice Scalia was like any ordinary person. He wasn’t. He was huge. And he will definitely be missed.  

Bail Reform and the Poor: Why the Truth May Surprise You?

Yet another blog from the bail insurance industry, and yet another monstrously wrong statement likely to turn the criminal justice system against bail agents everywhere. It’s a big one; in fact, the insurance company blog covers what it calls the “one fact” that we bail reformers don’t want anyone to know about. It concerns the idea that there are poor people in jail who can’t afford the financial conditions of their bonds. In the past, the insurance lobbyists have called this a myth, making me believe that those lobbyists likely spend all of their time in their offices (or their banks) and never inside an actual jail.

The truth – which is quite the opposite of what the bail insurance lobbyists claim – is that we have a ton of poor people in jail who can’t afford to bond out. Starting with federal government statistics, which found that most pretrial inmates are facing unattainable financial conditions, to work done by the New York Criminal Justice Agency finding the same thing, to every study of jail populations since, we see what mere logic should suffice to demonstrate: If you force people to pay money to get out of jail, some percentage of those people simply won’t get out.  

In New Jersey, Luminosity showed that 5,000 people, or 38.5% of the entire pretrial jail population, were unable to bond out due to lack of money – and 800 of those 5,000 defendants couldn’t get out of jail for the lack of only $500 or less. In Connecticut recently, the Under Secretary of Criminal Justice said, “I counted those who are in jail right now . . . on misdemeanor charges with no charges of violence or being dangerous [and] there are 299 sitting in jail on misdemeanors who can’t post bond. There are also 550 sitting in jail on bonds of less than $20,000 on charges that are not that serious. We see people sitting in our jail for weeks.” Heck, every single lawsuit you have been reading about lately in the news is being filed on behalf of a poor person languishing in jail due to money representing a class of defendants languishing in jail due to money. This is no myth.

In my county, our medieval prosecutor (who as an elected official, by the way, was quite cozy with bail insurance lobbyists from around the country) said the same thing. When everyone else said that he was crazy, he actually explained that he felt most defendants who are “held on bail” are there because they choose to be – they just don’t want out of jail. As a researcher, I decided to look into that claim, and so for three months I looked at every single defendant 48 hours after bail setting, sifted out the ones who were also sentenced or would otherwise be held anyway, and then went cell to cell to literally ask each defendant why he or she was still there. The overwhelming response of virtually all defendants was that they, their friends, and their families couldn’t afford the money.

And this problem is worse than it looks, because there are a whole bunch of defendants who eventually do get out of jail, but only after spending a bunch of time looking for the money. In our jurisdiction, the average time looking is 10 days. That wouldn’t be so bad except for all of that research out there that says if you keep low and medium risk people in jail for even short periods of time – like even 24 hours – you actually increase the risk for failure to appear and the risk to public safety both short and long-term. The risk goes up the longer they’re in jail. The insurance company lobbyists ignore that particular problem because it points to a fundamental flaw in the industry.  

This isn’t the end of the insurance lobbyists’ claims about poor people, however. In fact, the most ridiculous thing they say about poor people is that if someone is in jail because he or she can’t afford the money, it’s not because they’re poor. Instead, they say, it’s because they’re a public safety risk. The logic is twisted, and has something to do with thinking that if someone doesn’t have family members willing to join the “circle of love,” as they call it, then that fact suggests that the family thinks the defendant is dangerous. Crazy, huh? And totally false, as we now have risk assessment instruments that can actually tell us who is a risk to public safety and who isn’t.

I keep trying to figure out why the insurance companies make such ignorant statements, and I think it’s due to three things: (1) they have a fiduciary duty to make money to the company, and so they’ll say just about anything to do just that; (2) they have no idea what they’re talking about because they’ve never been in a jail in their life; and (3) they just don’t like defendants.  

This last point is indicative of a really big problem in the commercial bail industry. You simply can’t expect to have clients and at the same time show outward contempt for those clients. But that’s what I see every day from the insurance companies. Every time a bail insurance lobbyist says that defendants (un-convicted) should be treated as criminals (convicted) – such as by decrying the “criminal is the victim state of mind,” I see the true disdain that the insurance companies have for their own clients. Expert Bail – the supposed “gold standard” of professionalism, actually makes fun how defendants look on its Facebook page. It’s bush-league and infantile, but it points to a much deeper problem.    

You’ll lose a lot of people from your cause by telling them that it’s okay to keep defendants in jail just because they’ve been arrested, etc., because that’s not what our constitution says. It’s just not what it means to be an American.  

Bail agents, if you really want people to think about your essential role in the criminal justice system, don’t listen to the insurance companies, and don’t talk about why it’s okay for defendants to be in jail. After all, your entire industry was founded on getting bailable defendants out of jail. Talk, instead, about the things that resonate most with me; you care, apparently more than even judges, about a defendant’s right to bail, his or her presumption of innocence, his or her constitutional liberty interest and right to equal protection of the law. I’ve heard you say it before, and I think you believe it. If you don’t believe it, though, then I don’t think there’s anything that can help you. 

Bail Reform: Bully Activism at its Best?

Leave it to a bail insurance company to get so many basic things about bail utterly wrong. In a recent post on one of the main bail insurance sites, the company was bemoaning the recent federal lawsuits against money bail. In doing so, however, it makes a few fairly incredible misstatements that I can’t let go without comment.  

First, the insurance company tries to justify bail schedules by talking about how fair and “well thought out” they are. I’ve written extensively about bail schedules, studied bail schedules from across the country, and attended those meetings with the judges and others who create them, and the idea of a bail schedule being anything less than arbitrary and completely irrational is ludicrous. In my jurisdiction, the people who created the schedule picked money amounts out of a hat – no one could even remember what numbers started the whole thing off. And when I looked at all the other schedules here and in other states, I found the same thing. Arbitrary numbers, which were occasionally raised to account for inflation or perhaps headlines, with nobody having any idea about where the amounts even came from.

In fact, to say that the numbers are arbitrary is an understatement. I’ve seen and written about jurisdictions that have doubled every amount on their schedule in blanket fashion, and jurisdictions that halved every amount. Back in the 1920s, bail researcher Arthur Beeley wrote that the fact that the numbers were round numbers – like 5,000 or 10,000 – hinted at their arbitrariness. And he’s right. In fact, until you can argue rationally why $5,000 is the proper amount for an assault, when $4763.47 isn’t (without considering the individual characteristics of a particular defendant, and beyond questioning the 5,000 for other constitutional flaws), you’re just making both of them up. Fortunately in my jurisdiction, the judges eliminated the schedule without being sued, and they did it because the schedule was unfair, irrational, arbitrary, and the antithesis of the kind of individualized bail setting that had any hope of following the constitution. Yes, schedules are often created for benevolent purposes – I’ve written about this, too. But you aren’t paying attention if you haven’t noticed that they frequently evolve into unwieldly beasts that tend to keep more people in jail than out. Our old schedule was nearly 40 pages long, and I’ve seen them as long as 90, but some of the worst just list two numbers – one for all felonies and one for all misdemeanors. Overall, bail schedules are just another manifestation of a flawed and likely unconstitutional money-based bail system, but they have additional issues that make their extinction even more likely.

Second, the insurance company says that bail “is not about release.” Now I would think an entity making money from bail would know something about bail, but apparently not here. If you look deep into the history of bail you will see that the purpose of bail prior to the Norman Invasion was to avoid blood feuds. With the Normans, however, came an entirely new criminal justice system along with the building of jails, and from that moment on the purpose of bail forever shifted to provide a mechanism of release from those jails. Yes, court appearance was a legitimate purpose for setting financial conditions of release, but historically – both in England and America until the 1800s – those financial conditions were virtually always “unsecured” conditions, which meant that nobody had to pay anything up-front to get out of jail. In the 1800s, we ran out of personal sureties, flirted with secured cash conditions, and then ultimately tried the commercial surety business as a way to get bailable defendants out of jail. It didn’t work, which is why we’re here today. Bottom line, though, is that since the creation of jails, bail has always been about release. In 1951, the U.S. Supreme Court equated the right to bail with the “right to release before trial,” and “the right to freedom before conviction.” Is it any clearer than that? 

By the way, whenever an insurance company says that “bail is only about court appearance,” it’s showing its ignorance not only of what bail is and is not (it’s a mechanism of release, and it’s not money, which is a condition of release), but also of how bail has evolved to allow for release with conditions to provide reasonable assurance of both court appearance and public safety. The bail insurance companies’ complete disregard of safety as a legitimate public concern is one reason why we’re seeing bail reform to begin with. 

Third, the insurance company writes that the idea that money bail might discriminate against the poor “couldn’t be further from the truth.” As my dear friend’s delightful middle school daughter might respond, “OMG!” Doesn’t discriminate against the poor?! Are you nuts? It’s a money-based system, for goodness sake. Bail agents only help defendants with money. If defendants have money, they get out. If they don’t have money, they stay in. Really, this is something a child in grade school would know.      

And arguing that the money bail system doesn’t discriminate against the poor because so many poor people rely on the bail industry is like saying that separate but equal eating establishments weren’t discriminatory because all of the people eating in the “colored” restaurants were African Americans. I’m not trying to shock or offend by using a racial analogy, but I’m using it on purpose because in the post that I read, the insurance company not only made that argument – it also had the enormous audacity to write that money bail “supports racial and socioeconomic equalities.” That’s monumentally false, and anyone who believes it really has no place in criminal justice.

Overall, the insurance company piece provides a trifecta of fundamentally wrong statements about bail, leading me to conclude that this particuar company might be better suited to discuss something like health insurance. Or whole life. And, as usual, the way this goes is that once the insurance company makes wrong statements, people everywhere start correcting those statements. This not only makes them look bad, it also makes every single bail agent out there look bad, too. I hope it's just ignorance. Heaven help them if they're saying all this just to make money.