Bail and Human Dignity

Here’s a link to two pretty great reports put out by the John Jay College’s Prisoner Reentry Institute and the Arnold Foundation. The first is called, Pretrial Practice: Rethinking the Front End of the Criminal Justice System, and the second is called, Pretrial Practice: Building a National Research Agenda for the Front End of the Criminal Justice System.

I was at the conference leading to the first report, and a bunch of us submitted papers. Interestingly, though, the whole thing started revolving around a single issue, which was the need for more human dignity in the criminal process. It began with a discussion of Jonathan Simon’s paper on pretrial dignity, and pretty much continued on that theme for the rest of the conference.

I only mention that because I see that ExpertBail, a network of so-called “professional” bail agents created by AIA Surety to challenge the public’s negative perception of those agents, continues to post pictures and make fun of how defendants look on its Facebook page – pretty much the opposite of caring for human dignity.  

Do you really wonder why the insurance companies are losing this fight?

Bail Documentary

Here’s a link to a short but powerful documentary on bail. It's called Limbo. Please note, as you watch, how incredibly sane the jail commander sounds as he explains that the people swept up into the discriminatory money bail system are actually our family, friends, and neighbors.

This is, of course, in stark contrast to the thinking of the bail insurance company lobbyists, who, when pressured recently, have decided to change their rhetoric to mirror various right-wing “tough on crime” sites that apparently don't think we lock enough people up. I honestly get the feeling that those groups aren’t so much conservative as they’re just full of hate for people generally. Conservatives want to follow the constitution. These people are just pissed.   

The problem for the bail lobbyists, though, is how to square the various ideas they’re parroting – like the idea that there are no true “non-violent offenders” and that being arrested makes someone a criminal that somehow deserves a litany of pretrial abuses – with the more prosaic notion that they’d kind of like everyone to get out of jail by paying some money. The more they’re pressed, the more you see that they really just don’t like criminals, which, to them, includes “accused criminals.” Well, what if those accused criminals have a bit of cash? “Oh, well, then that’s different. They may not be nonviolent, but at least they’re rich enough to pay us.” Crazy.  

I might be wrong, but I think bail agents and I have a few things in common. For example, I believe we all like the right to bail, the presumption of innocence, and the various foundational American rights articulated by our state and federal constitutions.

The bail insurance companies haven’t really bought into all that, though. And because they don’t like criminals, but they do like taking money from the people they call criminals, they’re having a hard time coming up with coherent arguments now to keep the present system in place. 

By the way, this documentary is only about 5 minutes long. Using money bail, a judge could unconstitutionally detain about 30 people in the time it takes to watch it. 

The End of Money Bail?

We interrupt this normal break between blogs to give you a link to a Pretrial Justice Institute's press release, which discusses not one, not two, but three separate studies illustrating the flaws and damaging effects of money bail.

Please note all of the important people who signed onto the press release. And that's on short notice! A lot of those people were with me last week as we discussed the end of money bail.

Happy reading!

Lesson One: Read the Whole Thing

The bail insurance company lobbyists recently highlighted a story in the Pueblo (Colorado) Chieftain about pretrial release. I think they highlighted the story because of its headline – “Cops: Dangerous Criminals Getting Out of Jail Too Early.” The problem is, though, the lobbyists apparently didn’t read the rest of the article.

Yes, the Pueblo Chief of Police said he thought that certain people were “getting out on lower levels of bond that should not get out” (a statement that only illuminates the flaws in Colorado’s legal scheme, which unwisely allows the release of extremely risky defendants with money), but he said the real problem was that the pretrial services agency WASN’T BEING RUN BY IN-HOUSE COUNTY EMPLOYEES. Yeah, that’s right. 

You see, the Chief and the Sheriff had both recommended that the County implement a pretrial services program run by the government. You know – those things the lobbyists like to call criminal welfare agencies and all that. The Chief and the Sheriff apparently wanted to model it after the one in Mesa County, Colorado, a government run operation that is quickly becoming a national model. Instead, the County awarded a contract to Rocky Mountain Management Offender Management Systems (RMOMS) a private, for profit pretrial services entity. According to the story, law enforcement’s big beef was that a third party outfit was doing the work that law enforcement apparently thought the government should be doing.     

So the first lesson from all this is that the insurance lobbyists apparently don’t even read beyond the headlines. The second is something I’ve been harping on for a long time: if bail agents want a future in pretrial release and detention in America, it’s going to be doing the same sort of thing that RMOMS is doing, which is exactly what the courts want – assessment and supervision of criminal defendants who are ordered released. There are only about 350-400 pretrial services agencies in America, but there are roughly 3,000 counties. And those counties want assessment and supervision, period. But it’s got to be supervision for both court appearance and public safety, it’s got to handle everyone, and it’s got to work despite dramatically falling bail amounts.

The bail insurance companies won’t help you with this, bail agents. There won’t be any need for insurance backing, so they’ll continue their rapidly failing fight for the status quo, while companies like RMOMS show what a true “public/private” relationship looks like. 

I’m only going to keep warning you for so long. Last week I was with representatives from nearly 15 state supreme courts (including a half dozen or so Chiefs), and they were are all talking about moving toward the new model – risk-based assessment and supervision, and less or no money. You can either be a part of it, or you can sit back and hope the insurance companies will stop the whole thing in its tracks. You decide.  

Words Matter

The Bail Report from AboutBail sent me an email with the title, “9 Truths About Pre-Trial Release.” They sent me the same thing a few years ago, and I replied the same way I’m replying today – by giving them a tip about how they should define their terms.

The 9 Tips thing starts by defining “Pretrial Release” as: “normally a local government entity that releases criminal defendants from jail at no cost to the defendant.” Actually, folks, pretrial release is the release, pretrial, of a criminal defendant – period. Pretrial release is the opposite of pretrial detention, and it can happen in a variety of ways, from release using no money whatsoever to release using a secured bond that’s facilitated by a commercial bail agent.  

For some reason, early on a few people in the commercial bail industry got into the habit of calling pretrial services agencies or programs simply “pretrial,” as a mostly derogatory word used in such sentences as, “pretrial sucks,” or “pretrial is a criminal welfare program.” Some, like AboutBail, have added the word “release,” but they all mean the same thing. What they mean is a pretrial services agency or program. But calling those agencies or programs simply “pretrial” or “pretrial release” causes only confusion. Most everyone in America who knows anything about bail – including judges, researchers, law enforcement, and other criminal justice types – will just give you blank stares if you start talking about how bad “pretrial release” is, especially when you really mean an agency or a program.     

So if you’re a bail agent, please don’t go into to some state and say you don’t like “pretrial,” or that they should get rid of “pretrial release” when you’re really talking about a pretrial services agency or program. Like I said, if you say you don’t like pretrial release, everyone will look at you like you’re crazy, and for good reason. In fact, there’s probably a part inside each of you that’ll cringe too because, deep down, you all like pretrial release too. 

Pretrial release is woven into the fabric of American law. It came to us via some really big English jurisprudential developments including the Magna Carta, the Statute of Westminster, the Habeas Corpus Act, the Petition of Right and the English Bill of Rights. At the very least, it deserves an accurate definition.