Wednesday, March 30, 2016

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.