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
American Surety Company
Black Diamond Insurance Company
Lexington National Insurance Corporation
Sun Surety Insurance Company
Universal Fire and Casualty Insurance CompanyWhitecap Surety