Tuesday, February 2, 2016

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.