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.
