Tuesday, April 5, 2016

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.