Thursday, August 25, 2016

Bail Insurance Lobbyist Makes History!

I never thought it would happen. After years – no, decades – of claiming that there are no people in jail due to lack of money, a bail insurance lobbyist said, “It does happen, so I think we need to admit that.” Historic.

Normally, such admirable truth telling would prompt a bit of praise, but in this case I just can’t do it. That’s because I know how long the bail insurance companies have claimed that there are no poor people in jail. In fact, when it comes to poor people in jail, they’ve vehemently denied it, called it a myth, and said it’s a conspiracy among bail reformers to try to put them out of business. And because of that, poor people remained in jail due to money, which messed up their lives, their families’ lives, and even the lives of the general public, who had to deal with the consequences of unnecessary detention that the insurance companies said didn’t exist.

So now we know just how long a bail insurance company will make obviously false claims just so it can make money. A really long time.

Which makes me wonder. How long will they keep spewing all their other false and equally ludicrous claims? I mean, the “no poor people in jail” claim was obviously ridiculous and harmful, but the insurance lobbyists cited studies, gave presentations, and even provided testimony trying to get people to believe it. Is that it? Do we have to wait ten or twenty years on every bogus claim until they finally realize that nobody believes it and they have to give a retraction? Don’t they realize that their ruining people’s lives? This isn’t like other businesses, you know. Lying about bail has real consequences.

And now they think they should start a bail fund. Wow (please visualize me doing a double take or spewing milk out of my nose). I mean, WOW! You do realize, don’t you insurance dudes, that bail agents everywhere have had the ability to start a bail fund for the last 100 years. It’s called waiving the fee.  

The insurance lobbyist said, “We can do some good if we put our mind to it,” but the bail insurance companies are beyond just doing good to make up for the disastrous, decades-long lobbying effort designed to keep money in the system. I mean, where was this realization that poor people are in jail when they were trumpeting their “big victory” in Georgia through a new law forcing judges to set money bail?  

Bail insurance companies, if you want to do some good, quit acting like you’re interested in pretrial freedom while you argue that there are no nonviolent criminals and that everyone in jail belongs there. Quit acting like you care about release while you push a system that historically keeps people in jail. Quit saying you care about defendants while you make fun of how they look in their mugshots or sing songs about how idiotic they are. And quit paying lobbyists to say any ridiculous thing just to keep the money rolling in.

Just quit.

Do America a favor and just quit.

Friday, August 19, 2016

A Big Week

A few weeks ago, the insurance company dudes trumpeted their brief in the 11th Circuit Court of Appeals. This week about seven groups filed briefs for the other side basically saying that the ABC brief was full of it. No slouch groups, either. The United States Department of Justice, the Southern Poverty Law Center, the Pretrial Justice Institute and NAPSA, and the American Bar Association. And that's in addition to the appellee brief, which blows the City's brief out of the water. I used to write court opinions for the 10th Circuit Court of Appeals, so I'm sort of used to assessing briefs.  

Oh, yeah, and I filed one too. I did mine for free, by the way, and I took great care to point out to the court how ABC was intentionally misleading it. That's something it probably didn't mention to Paul Clement when it asked him to be their lawyer.

Also this week the state of Arizona issued it's report about bail, fines, fees, and costs. The Chief Justice is running that show, and everyone is on board. Of course, PBUS says, "don't believe this bunk." Really? Did you see who signed off on that report?

Well, you better believe it. I can't even keep up anymore. The insurance companies only tell you about the two things that they do (including interviews on 10 watt talk radio stations), and they leave out the 50 things everyone else is doing, like big time state reports led by a Chief Justice.

When you're in as deep as me, you occasionally have time to talk to others about sort of tangential things. Like the other day. I was with a friend of mine who's also neck deep in bail, and we both started talking about what we would do if we "switched sides." You know, if we decided to cash the big check and go work for the insurance companies. It turns out we actually know at lot that would help the industry stay afloat. The weird thing is that the insurance companies have never even tried any of our ideas.

One particular idea, though, really got my attention. It was what I would call a "pure genius" move, and simply by doing it, it would keep commercial bail flowing in America for another 20 years. I hadn't really thought about it before, and the bail insurance companies certainly haven't thought about it. Their strategy is to fight everything. Call everything bunk, like that'll make it go away.

Tell you what. I'm not going to say what the genius move is, but I'll write about it if I ever see it. Here's a hint. If you were at the 2011 Conference on Pretrial Justice, someone mentioned it in passing. Does that help?

Overall, I'd say this has been a pretty big week.

Sunday, August 14, 2016

Bail Reform in USA -- Today!

I know it's a bit late, but here's a link to a great opinion piece in USA Today, written by Cherise Burdeen of PJI and Bruce Beaudin, a true pioneer in the pretrial justice movement.

Last week I helped people in over twenty states. And as a reminder to those of you fighting the change -- I'm just one person, I do it mostly for free, and I don't think I'll stop until it's done.

Wednesday, August 3, 2016

Burning Bridges?

The recent studies showing the ill effects of money on the pretrial release and detention decision remind me, once again, to address an argument I occasionally hear from the bail insurance dudes. First they say nobody’s in jail due to money. Well, that’s a load and they know it, so they move on to argument number two.

Argument number two says that if a defendant’s in jail due to money, it’s not because he’s too poor – it’s because he has lots of previous problems and has “burned all his bridges” with family and friends who would typically come to his aid by fronting the money. It’s a derivation of the “circle of love” they like to talk about, but I suppose you’d have to call this a circle of hate. Or, like, a ring of resignation. You know . . . something.

Setting aside the fact that having “burned one’s bridges” is not a constitutionally valid purpose for detaining someone pretrial, the argument also misapprehends the most egregiously unlawful part of bail today, which is the fact that the money amounts are typically completely arbitrary.

So the argument by the lobbyist goes something like this: if a defendant gets released, he hasn’t burned his bridges, and so it’s okay he’s out (even though the same lobbyist might whine that the amount might have been “too low.”) Okay, so let’s say that the amount showing “no burned bridges” is $1,000. The problem is that a judge can simply add another zero – in fact, he or she can do that for virtually any reason or no reason under our current system – and the result can be much different. Now he’s in, and the bail lobbyist says that’s okay because he burned his bridges. Really? The new amount means that the same defendant now suddenly has burned bridges? Or could it possibly mean – and this is just a guess here – that he and his circle simply can’t afford the $10,000 but they can afford the $1,000? So the bridge burning has little to do with the defendant; it’s apparently really only tied to the amount chosen by the judge, which is arbitrary and subjective. I mean, what if the judge started with $10,000 (leading to detention) and then moved it down to $1,000 (leading to release)? Can we now say that the defendant, while in jail, has done the opposite of burning bridges? He has, instead, created new positive relationships?

Because I’ve heard this argument before, the next part says, “Well, when the judge set the $10,000 financial condition, that judge knew that defendant had a bad past and so the money was exactly the proper amount to be beyond reach of the defendant and his family.” Now, putting aside the fact that setting an amount to be purposefully beyond the reach of a defendant or his family is unconstitutional, I also think it’s putting a lot of faith into a judge to be able to determine not only the defendant’s wealth, but everyone else’s. And remember, if that judge only bumped the amount up to $2,000, the defendant might still make it and then everyone would still have to say that he didn’t have any burned bridges. Do you see how slippery this gets? Based on the bail lobbyist’s theory, this defendant might have burned his bridges at exactly $1,323.47, but not at $1,1145.48. And the judge set it at $10,000, so we’ll never really know.

Or maybe – just maybe – there are certain amounts people can afford and certain amounts people can’t afford. Welcome to a common sense explanation of money bail, which says that if you use a money-based system, people with money will get out and people without money will stay in.

Historically, money at bail became arbitrary after the Norman Invasion. Before the Normans, all punishments were fines, and so if someone set a bail amount, it matched the amount of the fine. Once the Normans got rid of the fine-as-punishment system, moving toward a system that used more capital and corporal punishment as well as prison, nobody knew what number to “set.” What should the “bail” be for someone facing a thirty silver piece fine? Easy. Thirty silver pieces. But what about a person facing a flogging? Who knows? And it’s been that way ever since. In the 1950s, Caleb Foote even commented on how the judges’ use of round numbers hinted at the inherent arbitrariness of money bail.  

Studies consistently show what logic should suffice to tell us: there’s an inverse relationship between the amount of the financial condition and the ability to obtain release pretrial, with release going down as money goes up. Think of it this way. If a judge set everyone’s financial condition at $1, practically everyone would get out and what their families felt about them wouldn’t factor into it. And if that same judge set every bond at $10 million cash, practically everyone would be stay in, and what their families felt about them wouldn’t really factor into it, either. Most people would say that the last example is clearly unconstitutional and would never happen, but we come close to that every day in jurisdictions with bail schedules having amounts in the hundreds of thousands of dollars. Oh, yeah, and we also see plenty of million dollar bonds.

Other studies allow us now to actually measure a defendant’s risk of flight and risk of committing new crimes, the only two constitutionally valid purposes for limiting pretrial freedom. And using those studies, researchers have gone into jails and found low and medium risk defendants who can’t get out due to money. In jurisdictions using money bail, you also see extremely high risk defendants getting out simply by paying money. Oh, and by the way, none of those risk instruments have “burned bridges” as a statistically predictive risk factor.

This argument – that if a defendant can’t pay, it’s because he’s burned his bridges and so he must be an unmanageable risk for flight or new crimes while on release – is a backassward argument attempting to justify an arbitrary money system that has nothing to do with either flight or public safety. There’s one good way to measure risk – through a statistically-derived risk assessment tool. There’s one bad way – through how much money a defendant or his family has. And there’s one stupid way – through how many “bridges” we think a defendant has “burned.”

By the way, always remember that one way to make a financial condition non-arbitrary is to make it affordable to the particular defendant (or, I suppose, the defendant’s family). Seems easy, but judges have been unable or unwilling to do that for the past 150 years. 

Tuesday, August 2, 2016

Two States in One Week!

Last week two different states asked me about things a bail insurance lobbyist said. It was the usual shtick for this lobbyist: surety bonds are more effective than anything else, and Jefferson County, Colorado (where I’m from) is a failure.

I explained to both states how the lobbyist is intentionally misleading them on both issues. I’ve written about this before, so there’s no need to explain it now. By now this lobbyist should know what he can and can’t say. He knows and he simply doesn’t care.

But think about it for a minute, because it appears he doesn’t care much about bail agents, either. I mean, really – intentional misrepresentation. By the time I get done explaining it, people get pretty mad. And they can’t distinguish between the lobbyist and a bail agent. To them, the industry lied to them, and so that’s a couple more people – big, important people with a lot of say about how pretrial release and detention will be done – who’d rather not even bother with commercial sureties.  

But I don’t stop there, because then I tell them about all the stuff the bail lobbyist isn’t telling them. Like why the so-called “Dallas Study” is so messed up ( I have a really great story about that one), how other states are issuing reports about pretrial justice that don’t include the industry and that the industry ignores, and all the slippery things they did in New Jersey to try (yes, they failed) to reverse course over there. And, by the way, I’m not the only person these states ask. There are hundreds of us, and we all have the same big knowledge base that makes these lobbyists look like they’re basically making it all up as they go along.  

Bail agents, I know you probably think these guys are acting in your interest, but they’re flailing, and in the process they’re taking you down.