Bail Reform: Innocence for the Poor; Guilt for the Rich?

In the latest installment by the bail insurance lobbyists, they argue that those of us hoping to change things must think that if someone is poor, he or she must be innocent, and if someone is rich, he or she must be guilty.

Okay, lobbyists, you’ve totally misconstrued everything we’re trying to do, so I’ll try to make it simple. The whole reason we’re in this generation of bail reform is that we have people in jail (called bailable by some, and low to medium risk of pretrial failure by others) who maybe shouldn’t be in jail, and people out of jail (called high or extremely high risk of pretrial failure) who maybe should be in jail. Guilt or innocence has nothing to do with it. Risk does. Money is the main culprit because it tends to keep the low and medium risk people in, and it tends to allow the high risk people out. Yeah, there are probably some wealthy but low risk people who get out, and some poor but high risk people who stay in, but they're not the big problem. 

Man, you would think that the lobbyists would at least understand this really basic reason for why we’re even doing this to begin with. Bail agents get it, but, then again, bail agents believe in the right to bail more than most judges I’ve met.

But really, trying to steer the conversation off course by constantly arguing that we bail reformers have some sort of social agenda to help criminals (an earlier blog talks about what the lobbyists call “hug a thug” laws) really misconstrues the whole bail reform movement, which is equally concerned with both release and detention. We tell people that we’re trying to put the right people in jail using the law and the research, and they get it. The lobbyists try to convince people that all the right people are already in jail, and nobody believes them.

Bail agents, these lobbyists will try to convince people that everything is fine the way it is because the status quo is the only way the lobbyists can keep making money. But everything they do reflects on you, too. Remember that.

When I break out the sock puppets, you know it’s probably time for a change.  

Got a Bit of Time? Go to Jail!

Okay, now this is something I can really get behind – a judge spends the night in jail, apparently just to show a bit of empathy for a veteran he sentenced earlier that day. You can read about it here. 

If you don’t count Boy Scouts or whatever, then the first time I ever went inside a jail or prison was during my first job out of law school. I worked for the United States Court of Appeals for the Tenth Circuit, and my judge had the whacky idea that if we were going to write opinions sending people to prison, we ought to at least visit a couple. So we went through Leavenworth Prison – at the time, the second most secure prison in America and a pretty scary place – and the United States Disciplinary Barracks, where people in the armed forces go who commit serious crimes. By the way, if you want to see some serious discipline, visit the disciplinary barracks. There’s a reason for why the word’s in the name.

Since then, I’ve toured a lot of jails and prisons, to the point where it’s become a bit of a hobby. I even took my wife to a medium security federal prison about 10 years ago.

Now I don’t think judges need to actually spend the night, but if you’re a judge – or frankly, if you’re anyone at all working in the criminal justice system – you need to at least go inside one. Most people don’t. In fact, when my friends at our local jail offered tours to judges, prosecutors, and county commissioners, they routinely declined. I imagine it’s that way all over the country.

Most jails and prisons have tours. If you work in criminal justice, figure out a way to book one. It’s not spending the night, but at least it’s close. 

Bail Rules Should Not Change?

Okay, so a freelance journalist writes an “editorial” about bail, sticks it onto a digital media site (you know, one of those sites that has to constantly fill space with “content” and get clicks and views to sell ads), and then the bail insurance companies point to it and send it everywhere they can. I mean, even if the bail insurance lobbyists paid for it, what’s the problem?

The problem is that even though the “editorial” says the bail rules shouldn’t change, the fact is that the bail rules are changing.  

Yeah, I noticed that it said bail should stay the same, but then it pointed to New Jersey, which just changed everything.

You noticed that too?  

Yeah, so what are the insurance companies doing about it? 

Well, they’re doing stuff just like this -- fighting to keep everything the same.

What if things don’t stay the same – what’s the role of the bail agent then?

They don’t know.

So they have no plan for what to do just in case things do change?

Right. 

But you said things are changing.

Yep. In over half the states. More to come.

Is there a way that bail agents can be a part of the future of American pretrial release and detention?

Yes, but it won’t include insurance companies.

Is that why the insurance company lobbyists have to convince bail agents that America wants to keep everything the same even while all of America is actually changing?

Yes.

One last question. Has the bail industry really existed since Medieval England? 

No, only since about 1900. I’m glad you noticed the historical error.  

Bail Insurance Lobbyists Mislead Bail Insurance Companies?

I’ve spent a good many words explaining how the bail insurance lobbyists mislead jurisdictions, and how those misrepresentations hurt bail agents across America. Turns out I think they’re misleading the very companies who pay them, too.  

I started figuring this out a few months ago when an insurance lobbyist told a bunch of people in New Mexico that Jefferson County, Colorado (where I live), was being touted as some sort of pretrial success story. Then the lobbyist showed them some numbers trying to convince them that the way judges are setting bail in Jefferson County today has led to some bad outcomes. As often happens in other places when these lobbyists speak, the people in New Mexico asked me to explain it all, and so I told them the truth. The truth is that nobody is calling Jefferson County, Colorado, a pretrial success story. And if there are any bad outcomes today, it’s because of the lack of success when it comes to how Jefferson County continues to use money at bail.    

I should know, because I’m one of the three people who helped design the so-called Jefferson County Bail Project, which was basically the name we gave to a big project designed simply to try to do bail differently. But to understand everything, you need to know that the bail project was really made up of two parts. The first part – a fourteen week experiment to show that if judges set less secured money bonds the sky wouldn’t fall – was a success. The sky didn’t fall, proving, at least partially and during the fourteen weeks, that we didn’t need as much money as we thought we needed to do release and detention. In fact, we were able to release more people and keep the same court appearance rates and public safety rates by using less secured money bonds. There were other successes associated with the initial attempt to do things differently, such as better bail education, more purposeful release and detention decisions, etc., but the 14 week experiment was the main thing.   

The second part, though – the part where Jefferson County was supposed to actually implement the things they learned from the 14 week experiment – was a total failure when it came to deciding how to use money. In fact, I actually published a document that said the county failed to implement what it had learned. And yes, I actually used the word “failure,” which should have made it pretty clear.

Now don’t get me wrong, there were some things Jefferson County did permanently that were and still are successes; for example, it has defense attorneys at first advisements now, and it got rid of their bail schedule. But overall, when it came to actually implementing a process that would move away from using cash or surety bonds, Jefferson County simply didn’t do it. So when the bail lobbyist went to New Mexico with data showing that outcomes are somehow bad now, years later, my response to the people in New Mexico was, “Of course they’re bad now, because nobody ever implemented any of the money improvements that we tested. After the experiment, judges went right back to using cash and surety bonds just like before.”

And then, just about a week or so ago, a bail insurance company – not the lobbyist hired by the company, but the company itself – said the same thing. It said, “Jefferson County is being touted as a pretrial success story.” And I really started wondering, “Who in the world is doing all this touting?” It certainly isn’t me. It isn’t the two other people who helped design the project. And I’m pretty sure it isn’t anyone else in Jefferson County. I mean, really, there is absolutely nobody in America saying Jefferson County is some sort of success story when it comes to pretrial release and detention.

But then it dawned on me. The main bail insurance lobbyist is from Colorado, and when he interviewed for his new job, he must have told the insurance companies that the reason the three of us who designed the bail project are all doing national pretrial work is because people think the bail project was great. He must have said, “Hey, people are touting Jefferson County, but I’m from Colorado and I can find out the real story and prove that the bail project shouldn't be touted at all.” The problem is that he apparently never even read our published documents. If he had, he would have known that I, myself, said that it failed.

So here’s this lobbyist telling the companies that pay his salary that people are “touting” the Jefferson County bail project as some success – when they aren’t – just so he can justify foraging through some jail stats to try to shoot it down. Man, talk about messed up. I mean, when you realize that Jefferson County actually failed to implement, then the very numbers the lobbyist uses to try to trash the project actually hurt the industry. Don’t you see? I would expect the current numbers to be bad today because judges in Jefferson County kept on using cash and surety bonds.

This is just one more example of a bail insurance lobbyist saying whatever comes into his brain without even gathering the facts. Once again, bail agents, these guys aren’t doing you any favors.  

The One Thing Missing From The Bail Reform Debate – The Truth?

Okay, this should be easy. A bail insurance company listed a bunch of “truths,” which makes it easy for me to grade them on their own truthfulness.

Insurance Company Truth 1: “Pretrial Release is not about letting people out of jail . . . It is about ensuring that they show up for court.”

First, saying that “pretrial release” is not about releasing people pretrial sounds pretty dumb, but I think I know what he means. He means bail, and this is actually false for the reasons I wrote about a couple of weeks ago. He needs to read my two papers, Fundamentals of Bail, and Money as a Criminal Justice Stakeholder. Ever since the Norman Invasion, bail has always been about release.

Grade: D, but only because court appearance is a constitutionally valid purpose for limiting release.  

Insurance Company Truth 2: “The Current System of Financially Secured Release is Absolutely a Risk Based System.”

This is actually true, but it doesn’t mean that the current system isn’t screwed up. Risk is inherent in bail, we’ve been assessing risk at bail since 400 A.D., and we’re getting better and better at it all the time. So, technically speaking, even though currently we tend to just look at some guy’s charge and set an amount of money hoping some bail agent might help, that’s actually a very basic and flawed way to deal with risk. And, yes, insurance companies deal with risk at bail, too, even if they never actually pay out. But stepping back a bit, we see the big flaw with the model we set up about 1900 in America. Looking at someone’s charge, setting some arbitrary amount of money, and then waiting to see what happens is a lousy way to do pretrial release and detention, and an equally lousy way to deal with the risk that’s inherent in bail.  

By the way, even though insurance companies deal with risk all the time by using actuarial risk instruments, the bail insurance companies have gone on record to say that gut instinct is better than actuarial instruments in bail. I got on them pretty fast for that one, so they may have taken it back.

Grade: C -

Insurance Company Truth 3:  “People are not in jail because they are poor . . . they are in jail because of probable cause and they are accused of breaking the law.”

Technically, people are arrested only after a finding of probable cause, and even then they don’t have to be transported to jail. But he’s sort of right – people don’t initially go to jail because of bail. They just stay in jail because of bail. That’s one big reason why we’re having a bail reform movement.

Grade: D -, mostly due to the warped idea that people who can’t afford the amount somehow belong in jail.

Insurance Company Truth 4: “Financially secured release is the most effective way to assure appearance in court . . . release through a public sector pretrial program is one of the least effective methods.”

This is totally wrong, mostly for the reasons I stated last week dealing with the data issue. But look at it this way. What if surety bonds were the best way to deal with court appearance? They still have nothing to do with public safety, and they really, really screw up release. I once did the numbers. If you take 100 felony defendants and look at what happens to them, you see that about 2 or 3 will be released on a surety bond and skip court. The argument is this: “Since we go out and get those 2 or 3, the others on a surety bond are afraid to skip, and so we maximize court appearance.” The problem is that even if that’s true (it’s not – but that’s the subject of another blog), by placing a surety bond on everyone, 27 or 28 of those 100 defendants will be detained due to money. Bail requires us to balance release with public safety and court appearance. A thing – such as a surety bond – that does nothing for public safety and that screws up release fails in that balance.

Grade: F

Insurance Company Truth 5: "The defendant is not the victim."

This is true.

Grade: C because he got it right, but for all the wrong reasons. Saying we’re treating defendants like victims simply because we think jurisdictions should follow their constitutions is pretty lame. Moreover, it’s okay to want to help victims, but not because you think the defendants are already guilty. It’s like saying that certain people should be treated with dignity (which is true), but only because everyone else sucks. If you don’t like criminals, man, get into sentencing. That’s where the action is.