Wednesday, June 15, 2016

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.