PBUS Elected the Wrong Person

“People are not in jail because they’re poor. They’re in there because they broke the dang law.”

With that one quote in a recent Marshall Project article, the head of PBUS just proved to the world that she knows little about bail, and that she’s bought into the bail insurance company slash and burn rhetoric designed to fight literally any changes to the status quo.

Let’s get this straight, because I know deep down that bail agents care about release. When America started running out of personal sureties, it was commercial bail bondsmen and women who stepped up to help. When judges set amounts of money that were unattainable by most defendants, it was bail bondsmen and women who stepped in where even the Excessive Bail Clause could not, and tried to make sure that people could still get out of jail. Yeah, I know that states gradually started putting insurance companies in the mix (slowly turning the bondsmen and women into agents), but it was the spirit of those early bail bondsmen and women, who really cared about the right to bail, the presumption of innocence, due process, and pretrial freedom, that should be the enduring spirit of bail agents today.  

It’s the bail insurance companies that don’t know what they’re talking about. It’s the bail insurance companies that once wrote that they didn’t believe in the presumption of innocence. It’s the bail insurance companies that don’t believe in risk assessment even though they use it for every other form of insurance. And it’s the bail insurance companies that are now starting to peddle the moronic line, “the defendant is in jail because he broke the law.” Bail agents should look at this sort of statement and say, “No, this person isn’t convicted yet, and so we should all do what we can to see that he or she is released, because, after all, we live in America.” At that point, we’d disagree about how to do that, but you get what I’m saying, don’t you?

By parroting the bail insurance company line, PBUS might as well just be a shill organization for those insurance companies and ABC. And, really, those guys could care less whether you bail agents survive so long as they keep making their money.

The insurance companies could be helping you, agents, but they aren’t. You know that, and I know that because I’m a part of various projects begun in the wake of insurance company fights. The weird part is that I can actually visualize a future with bail agents taking a giant part in productive bail reform, breaking away from the insurance companies and talking about how to effectuate pretrial release and detention without the kinds of astronomical amounts that require freakin’ insurance companies to back.

But I can’t expect that from PBUS anymore. No, PBUS elected the wrong person. 

Did They Post Something About This?

While the bail insurance lobbyists were busy touting the filing of an amicus brief in an 11^th Circuit Court of Appeals case (big deal, by the way – I read that brief and it contains all of the same tired arguments that have failed everywhere else, so they really should stick to their specialty of backroom lobbying), this happened. 

Among other things, this settlement calls for the end of money bail on all misdemeanor offenses in Jackson, Mississippi. 

Get Used to This Kind of Thing

The Arizona Court of Appeals issued an opinion the other day – found here – that basically holds up parts of Arizona’s bail law against the United States Supreme Court's opinion in U.S. v. Salerno, and concludes that the state provisions lack due process.

Get used to this. Virtually every state has a “no bail” provision that is likely deficient in some way when held up to Salerno, and it’s only a matter of time before other states and federal courts start saying so. Think, too, about all those states that have “no bail” provisions that are routinely ignored by judges who would rather use money. Ain’t no due process in that kind of pretrial detention, either.

It’s these kinds of things that, long ago, caused me to write that bail reform is inevitable. It's still true. All the markers are there, and you simply can’t avoid it. 

Fundamental Cracks in the Foundation?

The American Bail Coalition put out its midyear report on all the “failing efforts to eliminate the constitutional right to bail.” I suppose if they reported on all the “successful efforts,” it’d be longer and harder to write. But that’s why I’m here. To correct the record!

First of all, though, nobody’s trying to eliminate the constitutional right to bail. The right to bail isn’t a right to money, and the insurance companies know that. As the U.S. Supreme Court said, it’s a right to release – a right to “freedom before conviction.” And it just so happens that money gets in the way of release and freedom. If anything, eliminating money greatly enlarges the right to bail. We’re not eliminating the right to bail. We’re making it meaningful.

I’m not going to go point-by-point through their whole report and show how these insurance lobbyists mislead all the people they’re hoping to convince are on the right side. For example, if you really liked money bail, and if ABC told you the whole story behind New Mexico, you’d be pretty concerned. Or the federal money bail act – did you really think something like that would pass in an election year by this Congress? Goodness gracious, if they actually paid a lobbyist to work against that bill, they’re dimmer than I thought.

Instead, I’m just going to list all the states that are making progress reforming the bail process that ABC didn’t even mention. Here they are:

Alaska, Oregon, Nevada, California, Arizona, Wyoming (yes, I’ve talked to them), Colorado, Pennsylvania, Virginia, Delaware, South Dakota (albeit minor stuff), Wisconsin, Kansas, Nebraska, Texas (watch out for Texas), Missouri, Kentucky, Illinois (I know a couple of big time bail reformers out there right now), Ohio, Indiana, North Carolina, Maine, Massachusetts, Hawaii (just talked to them, too), West Virginia, Minnesota, and Alabama (well, one county, but you also have to count the lawsuits). Oh, and don’t forget Guam! Mighty Guam is leading the charge.

In fact, I only counted 15 states that aren’t doing any bail reform, and those are just the fifteen I personally don’t know anything about. Ask PJI, or NIC, or a few other groups, and they’ll probably add a few to my “bail reformer” list. Oh, yeah, and you probably have to add a few more of the 15 to that list simply because they’re getting sued. That sort of thing leads to bail reform, too.

My dad was a lobbyist, and my brother is a lobbyist, so I know that lobbyists have to periodically make reports showing a certain amount of success. I expect it. But the time is running out for these particular bail insurance lobbyists to help their bail agents make any kind of transition into the brave new world of pretrial supervision.

For over 100 years, the “foundation” of American bail has been secured money bonds. But all of that is changing. There are fundamental cracks in the foundation, all right, but they aren’t the ones the insurance lobbyists want you to focus on. 

Hey, Bail Agents, Did the Insurance Companies Blog About This?

You bail agents are certainly getting a lot of stuff handed to you through the various bail insurance websites and Facebook pages. If that’s all you end up reading, you’re probably going to think that they’re winning their battle to keep the status quo. But here's a link to an event those insurance company lobbyists probably didn’t blog about. It’s the Washington Supreme Court’s Minority and Justice Committee’s hearing called, “Pretrial Justice: Reducing the Rate of Incarceration.”

This takes a bit of time to watch – over 3 and a half hours – but if you do, you’ll start to get a feel for how this whole reform business is going. Think about who was in the room: Supreme Court Justices. Think about who wasn’t in the room: bail insurance lobbyists lamely trying to push their various “research studies” concerning money bail. I suppose if those studies were any good, someone else might have mentioned them, but that didn’t happen. Instead, if you watch the video you’ll hear some interesting quotes, like:

“Money bail clearly does not work.”

“I do not believe in money bail. It does not work.”

“Although it may be possible to design a money bail system that does not regularly violate the constitution, we haven’t seen it yet.”

These types of investigations, hearings, and exploratory educational efforts are popping up all around the country. So many that I’m having a hard time keeping up with them.

So ask your insurance companies what their strategy is to lobby state Supreme Courts. More importantly, ask them what they’re going to do when everything does change. Remember, there may be a place for bail agents in the future of American pretrial release and detention, but there’s no place for bail insurance companies. That’s why their goals are not your goals, and it’s why their strategy is only hurting you.