Saturday, February 13, 2016

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.