Bail Insurance Companies Mislead the American Bar Association

The current American Bar Association Journal has a story about bail reform -- you can find it here.

In it, the bail insurance company lobbyist tries to defend the money bail system by pointing to a 2004 Journal of Law and Economics study saying release on surety bonds was better than release on “own” or “personal” recognizance. That’s a problem, and it’s misleading, but it’s something those companies do despite knowing it’s misleading, so I’ll try to make this really clear.

That study was produced using the State Court Processing Statistics (SCPS). And, essentially, the authors of the study used those statistics to essentially say that release on a surety bond was superior to release in other ways. The bail insurance companies glommed onto this study as one of their “go-to” documents that, according to the bail insurance companies, proves surety bonds are great. You can tell the insurance companies still really like it because they’ve been touting it around the country for years, most recently in the ABA Journal article, above.

The problem (and this is a big problem) is that the Bureau of Justice Statistics – the group that keeps the very data that the study used – said in a formal data advisory that you can’t use their data to make “evaluative statements” about the effectiveness of one or other form of release – i.e., the exact thing that the study did. In fact, the data advisory says, “any evaluative statement about the effectiveness of a particular program in preventing pretrial misconduct based on SCPS is misleading.” If you read the data advisory – which, by the way, was only put out because of numerous misleading bail insurance company claims using mostly this particular study, you’ll see that there’s no way you can really compare the data to make any statement about which release type is best.

I don’t blame the authors of the study. They wrote it before the data advisory came out and they were economists, not criminal justice people. But I do blame the bail insurance companies for continuing to mislead people by citing to the study because they know exactly what they’re doing. In fact, once the data advisory came out, the bail insurance actually went to BJS to complain: “How unfair,” they cried, “to keep us from using this study!” But then everything went quiet, and about six months later they just started citing to the study again. Apparently, the bail insurance companies have decided that the people they give it to are a bunch of idiots, and that there’s really nothing to lose by citing to discredited research.

This should concern all Americans, but it should especially concern bail agents. That’s because every time the bail insurance companies cite to this study, I (or any of about 100 others who know the story) go in and explain everything to the people they cited it to. Once I do, the people who were misled get really peeved – not only with the bail insurance companies, but also with bail agents. They get peeved because the insurance companies are misleading jurisdictions on purpose to make money. And the anger over that leads to anger about everyone associated with the commercial bail system.

I’ve written about this a bunch, so it’s clear the insurance companies don’t care what I say. Or maybe they do. We’ll see.

By the way, this knowing misrepresentation in the American Bar Association Journal was brought to you by the American Bail Coalition, whose members include:

Accredited Surety and Casualty Company

AIA Surety

American Surety Company

Bankers Surety

Black Diamond Insurance Company

Lexington National Insurance Corporation

Sun Surety Insurance Company

Universal Fire and Casualty Insurance Company

Whitecap Surety 

Bail Insurance Companies and the Purpose of Bail

Here’s an example of how little the bail insurance companies know about bail, and why I saw a need to get back to basics when I began researching bail. And by back to basics, I mean back to the definition and purpose of bail.

In the middle of a recent diatribe about treating defendants as victims, a bail insurance company says, “The purpose of bail has nothing to do with release. They call it release because ultimately someone does get out of jail, but the real purpose of bail is to guarantee appearance. If you can’t guarantee appearance, there is no release.” This is wrong for several reasons.

The proper definition of bail, whether one uses history, the law, the research, or the national standards on release and detention to come to that definition, is that bail is a process of conditional release. As Justice Jackson said in his concurring opinion to Stack v. Bolye, “The practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty. Without this conditional privilege, even those wrongly accused are punished by a period of imprisonment while awaiting trial, and are handicapped in consulting counsel, searching for evidence and witnesses, and preparing a defense.”

Historically speaking, the purpose of this bail process prior to the Norman Invasion was to avoid blood feuds between families. After the Norman Invasion, however, with the advent of crimes against the crown (like our crimes against the state), roving judges, and jails, the purpose of the bail process quickly evolved to provide a mechanism of release. Likewise, the purpose of “no bail” is to detain people. Think about it, why do we have this thing called “bail?” To release people. Why do we have this think called “no bail?” To detain people. This is why (also in Stack) the Supreme Court equated the right to bail with the “right to release before trial” and the “right to freedom before conviction.” 

The bail insurance company is mistaking the purpose of money at bail with bail itself. But money is only a condition of bail – a limitation of pretrial freedom – and the only constitutionally valid purposes for limiting pretrial freedom are court appearance and public safety. Money is like drug testing. For now (because money might go away as a lawful condition) it’s a condition of release that a judge can set, but only for one of the two underlying purposes of court appearance or public safety. A judge might say, for example, “I’m concerned about court appearance, and I think that you might not come back to court if you’re on drugs, so I’m ordering drug testing as a condition of release.” Same with money, even though all of this assumes that money is lawful and that it works. Moreover, technically speaking, money can never be set for purposes of public safety. That’s the topic of an entirely different blog, but it highlights that fact that bail insurance people never really discuss public safety because that’s not in their business model. To talk about public safety, they have to use tortured logic to argue that if a defendant can’t make the financial condition of his bail bond, he must be dangerous.  And that’s just wrong.     

Here in Colorado, we used to statutorily define bail as money. And that was the consensus in Colorado for decades, right up until we started studying bail. And once we studied bail, one of the first changes we made to our statute – a change embraced by the entire criminal justice system – was to change the definition of bail, which now includes the notion of release with no money. Bail is not money. Money is money.

Next, the bail insurance company says that the purpose of “bail” is to guarantee appearance. Wrong again. Money at bail cannot be set to guarantee anything. The Supreme Court has been pretty clear that money as a condition of bail can be set, but only to provide reasonable assurance – not complete assurance – of court appearance. If you want complete assurance, or an absolute guarantee, you need to set the money amount with a purpose to detain the defendant, and that has always been unlawful in America.

Now, if a court can’t get reasonable assurance of either court appearance or public safety, that court might be able to deny bail, but only if the state legal scheme is set up the right way. And one big reason why we’re in a full-blown bail reform movement is because America’s legal schemes are not set up the right way.  

Finally, the bail insurance company says, “They call [bail] release because someone does get out of jail.” Well, not really. Another big reason for the current bail reform movement is that people don’t necessarily get out of jail even though they’ve been ordered released on bail. The fact is, throughout the history of England and America, whenever bailable defendants do not obtain actual release, bail reform happens. Just like the housing bubble in “The Big Short,” bail reform has markers, and all of those markers exist today.

You can read all about bail reform in my two papers published by the NIC, but the bottom line is that, historically and legally (and quite the opposite of what the bail insurance companies think), bail has been, is, and should always be about release. Accordingly, throughout the history of both England and America, whenever bail doesn’t lead to actual release – i.e., whenever the practice of bail doesn’t equal the theory of bail – we see bail reform. It’s no wonder this bail reform movement is taking the insurance companies by surprise. How would you know how to reform something (or to fight reforming it) if you don’t even know what it is?    

Lately I find myself writing these blogs to bail agents, but that’s for good reason. By making all the wrong arguments, by using faulty research, by twisting words, and by simply getting basic definitions wrong, the bail insurance companies are slowly putting bail agents out of business. There’s potentially a place for bail agents in pretrial release and detention in America, but not if bail insurance companies – companies that don’t even know what they’re talking about when it comes to bail – are leading the fight.

This is just one single case in point. A leading bail insurance company, in business for 100 plus years, says that bail isn’t about release when, in fact, bail is all about release. But this company isn’t alone. I’ve had bail insurance people look at me like I’m from Mars when I say bail is release, the purpose of bail is to release people, and the reason America even created a commercial bail system around 1900 was to help people obtain that release. So really it’s up to you all to decide who’s right or wrong. If I’m wrong, then I’m just some goofball running around the country spinning my wheels. But if I’m right – and everything I’ve ever heard, seen, or read about bail says I’m right – then you’re going to see big changes to polices, practices, statutes, court rules, and constitutions in every state in America. More importantly, if I’m right, then the bail insurance companies are incredibly wrong. Think about that while you watch them spend your money on their lobbyists.  

Bail Reform, Discrimination, and Richard Nixon

The problem with blatant, overt discrimination is that people are usually too smart to admit to it. Well, most people. This week, Dan Baum wrote a piece for Harper’s Magazine, found here, in which he quotes from his interview with John Ehrlichman, one of Richard Nixon’s key aides and nominee for best leading actor in the Watergate saga. In his interview, Ehrlichman said that Nixon wanted to use something called the “war on drugs” to go after his biggest enemies – at the time, so-called anti-war hippies and African Americans. Ehrlichman said:

“We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

And it was pretty big lie, huh? The war on drugs bedevils us even today. For some reason, doing horrible things to people and lying about it while its happening can keep a thing rolling for a long time. Right before he died, I asked my dad what he and others were thinking when they nominated Richard Nixon in 1968 (dad was a delegate). His response? “We didn’t really know he was a criminal back then.” And that’s the problem, isn’t it? We’d like to think that our leaders won’t lie to us, because if they’re lying, then they’re lying about really important things, and we know that those sorts of lies can tear our whole society apart.  

So we have a rare admission to blatant, overt discrimination using the war on drugs to go after hippies and blacks. What does that tell us about bail?

First, it tells us that we may have to wait decades before someone opens up and says that they were fighting for money bail because it kept the poor and minorities in their place – disrupted their communities, vilified them. How else can we really explain a practice that is so monumentally unfair and that simply doesn’t work to do whatever lawful thing it’s supposed to do? Well, besides making a profit, that is. But we can’t wait decades.

Second, even if we wait, we may never even have an admission.

A few months ago I was in a place where a judge admitted to setting a high money bond to detain someone, and where a prosecutor admitted to asking for a high money bond to “start the punishment.” Both of these things are clearly unconstitutional, and yet the judge and the prosecutor actually admitted to doing them. How far away can we really be, then, to even more contemptible reasons for setting an unattainable money bond if we just dig a bit deeper?

The only way to avoid all of this is to take the tool away. The traditional money bail system must end. It must end for about a hundred reasons, but especially for the fact that money bail has the potential to be used for really, really bad purposes. 

My Schedule

I’ve had a couple of busy months working with people in Illinois, Kentucky, Virginia, Indiana, Texas, Maryland, New Jersey, Idaho, California, New Jersey, Montana, Florida, Wisconsin, Connecticut, and the federal system.

And hey, bail insurance dudes, since you seem to like following me around, in the next couple of months I’ll be in Arizona, Colorado (yeah, I live here, but occasionally I travel across the state to spread the bail/no bail gospel), Ohio, Tennessee, Alabama, Wisconsin, Kansas, Missouri, and Texas. That doesn’t count the phone calls and emails from everywhere else.

Bail agents, this is just my puny schedule, and there are plenty more people like me going around the country and basically saying the same things that I say. And you should realize that wherever I go, I see that the bail insurance lobbyists are doing you absolutely no favors. They’re using the same flawed research, the same tired arguments, and the same threats of chaos to try to keep people who want to change from actually changing, and it’s just not sitting well.

On their websites, the bail insurance folks will issue “statements” about this and that, and they’ll trumpet what they think are victories. By the way, there’s nothing historic about what they did in New Mexico to the proposed constitutional amendment – the historic part would have been the part they muddled up – and forcing criminal justice people to accept bad language with the threat of killing the bill only causes animosity. Pushing an agenda on the people by nosing around the legislature isn’t historic; it’s the only way the insurance lobbyists can get anything done. In fact, they did practically the same thing in Colorado. The insurance company guy was there when we passed the 2013 changes to our bail statute. He didn’t like any of it, and made a pretty confusing statement in front of one of our committees, but ultimately he testified as being neutral and tried to spin it to bail agents as some sort of great victory and compromise.

Bail agents, you should realize that the insurance lobbyists claim to be acting in your interest, but they’re failing miserably and leaving ill will in their wake. And if you keep letting them speak for you, your industry will fail as well. 

Judge Eric Washington Speech About Bail and No Bail

Here's a pretty great speech given by Eric Washington, Chief Judge of the District of Columbia Court of Appeals: Judge Washington Speech

It's for the Brennan Lecture, put on by the Institute of Judicial Administration at the NYU Law School.

Although Judge Washington is wonderful to listen to anyway, from this, and a few other things, you can see that the judges who run our country's hlighest courts (including Justice Rabner, who gave the introduction) are starting to really get involved.