I got on the
elevator the other day with a bail insurance guy. He started talking about
commercial bail, and the whole thing went like this:
On the first floor,
he said, “Commercial bail is the lynchpin of the criminal justice system”
I said, “Well, no, not
really. I’d say the lynchpin is the constitution, and even though bail’s in
there, commercial bail isn’t.”
On the second floor,
he said: “I believe the system of bail is in place not for the accused as
much as it is for victims, society and the interest of justice.”
I replied, “You see,
this is where it helps to know something about the constitution. The right to
bail is reserved for people accused of crimes. Saying it’s not is like saying that
the right to speedy and public jury trials, the right to confront witnesses, and
the right to assistance of counsel aren’t for defendants but are mostly for
victims and society. Is the right to be free from cruel and unusual punishment
in there for victims? All that stuff is in the constitution to keep the government
in check. Now, the government can limit pretrial freedom to protect victims and
society, but commercial bail doesn’t have anything to do with protecting
anyone.”
On the third floor,
he said, “While mistakes happen, the impetus for an arrest is probable cause
and therefore on its face, justified.”
I responded, “I
don’t know why you even say this. It’s like you’re trying to come up with
excuses for why certain defendants never get out of jail even though they’re
bailable. You know, based on this statement and the last one, I’d say you guys
don’t even believe in the right to bail. We’re getting kind of high up. Are you
dizzy?”
On the fourth floor,
he said, “The accused has a right to reasonable bail if a capital offense
was not committed.”
I answered, “Well,
I’ll give you one this to speed things up. The right to bail in America’s pretty
complicated, and I’m beginning to think you don’t even really know what it is.”
On the fifth floor,
he said, “Society has a right to know the accused will appear for trial.”
I retorted, “True,
but society has a right to be protected, too, and commercial bail has nothing
to do with that. Society also has a right to know whether their jails are being
run lawfully and efficiently, and commercial bail gets in the way of all that. Members
of society have a right to know that if they get arrested, they won’t be
treated unconstitutionally, and commercial bail gets in the way of that, too.”
On the sixth floor,
he said, “The most effective means to insure the accused appears for trial
is a fully guaranteed bail bond backed by an admitted surety company and
executed by a licensed bail agent.”
I rebutted, “That’s
not true. You’re relying on those studies that the feds said you can’t rely on
anymore. But even if commercial bonds are helpful at getting people to court,
they have nothing to do with public safety, and they really hinder release.
There are only three purposes underlying bail, and commercial surety bonds fail
miserably with at least two of them.
On the seventh
floor, he said, “Unsecured releases do not offer a guarantee and are akin to
an air sandwich.”
I countered,
“Mmmmmmm ……. air sandwich.”
“Seriously, though,
you’re forgetting about all those other things we use to motivate people to
come back to court, like new charges, contempt, pretrial services agency
supervision, and all those nonfinancial conditions that we came up over the
last 50 years. Risk is inherent in bail. There’s no guarantee. There’s only
stuff that’s fair and works, and stuff that isn’t and doesn’t. Commercial
surety bonds are unfair and they don’t work. The same concept is true with any
condition of release. If the GPS monitors don’t work, we won’t use them, and we
won’t tolerate GPS manufacturing lobbyists nosing around trying to force people
to use them.
On the eighth floor,
he said, “Only commercial bail bonds guarantee the production of the accused
in court or payment of the bail amount when an offender cannot be produced.”
I said (ran out of synonyms),
“Guarantee?! Who are you kidding?” And I started talking about most people
coming in on their own, law enforcement bringing in the rest, forfeitures,
exonerations, insurance company pay-out rates, etc. . . . . .
He got off.
The
current system of commercial sureties administering mostly secured bonds hasn’t
worked since America implemented it in 1900. There’s a future for bail agents
in American pretrial release and detention, but they’ll have to ditch the
insurance companies. Even their elevator speech is messed up.
