Bail Insurance Companies Insult Connecticut Sentencing Commission

This is becoming a trend. On December 11, bail insurance company lobbyists wrote to the Connecticut Sentencing Commission and said, "As always, we look forward to assisting the Commission in any way we can as you continue your work in the service to the state."

Then, on December 14, the same bail insurance company lobbyists called the Connecticut Sentencing Commission a "kangaroo court" that "suffers from amnesia" and "rubber stamps" policies of their "lame duck" Governor.

Wow. Either something happened in those three days, or it's just more of the schizophrenic babbling of an insurance industry that doesn't quite know what to do. Well, in any event, you all should know that people on the Commission have seen the insults and don't appreciate them.

Hey, insurance dudes, didn't you watch Kingsman?

I mean, it's just bad manners.

Changing Constitutional Bail Provisions: Pretrial Release and Preventive Detention

I'm just adding this post to, once again, remind everyone that there are certain issues a state must examine before deciding to change a constitutional right to bail provision, just as there are issues that a state must address when changing them. Whatever a state does to a constitutional right to bail provision involves drawing a line between release and detention, and that requires legal justification.

My latest paper provides a model for states that are asking: (1) whether to change their right to bail provision; and (2) if so, to what? More importantly, it shows how to legally justify the change.

Here it is, called "Model Bail Laws." It assumes that the reader will read Fundamentals of Bail and Money as a Criminal Justice Stakeholder first, and those are cited early on in the Model Bail Laws paper.

Once again, if a state changes its right to bail provision, it will need to legally justify it. The only way to do that is to work through the issues presented in the model in the paper. I don't require states to necessarily adopt my model, but courts will require that they justify theirs much like I justified mine. If they don't, the new provisions run a real risk of being struck through any number of legal theories.

Not to get too complicated, but the same issues that go into changing a bail provision will illuminate the fact that many existing detention provisions are currently unlawful, simply because those provisions were likely justified through assumptions that are false today.

The model in my paper is kind of long and a bit complex, but if anyone calls I'll help to explain it.

Bail Industry Loses Hard (Again) In New Mexico

Here's a link to the press release reporting that the judge dismissed the federal lawsuit in New Mexico brought by the bail industry. It's done. Oh, wait, first comes the appeal, and then that dismissal, and then it'll be done. I forgot that they like to spend tons of money appealing everything.

I'm not going to rub anything in because this dismissal was a given. I already wrote about the industry losing a motion for preliminary injunction, and about a similar suit in New Jersey getting hammered and hanging on by a thread.

Nevertheless, I will mention, once again, that this shows that the strategy created and advanced by ABC, PBUS, and the insurance companies is seriously flawed.

ACLU Is All In On Ending Money Bail

Here is a link to the ACLU's announcement of a national campaign to end money bail.

The big gorilla is awake and eating.

What Is It With the Bail Industry and Goofy Facebook Posts?

So this time it's PBUS that posts a link to a symposium held at BYU Law School on misdemeanor justice. Above the link, PBUS quotes a summary of Malcom Feeley's keynote, which says, "Professor Malcom Feeley critiqued prior reforms: Bail reform, pre-trial diversion, and electronic monitoring were innovations that ultimately failed to change incarceration rates and inflamed issues of race and poverty in the justice system."

And, as always, a bunch of folks "liked" and "shared" the post without really thinking about it or reading the summary.

You have to wonder -- did PBUS really think deeply about what Feeley was saying, or did some dude who places the Facebook posts just see the words "bail reform" and "failed" and think, "Man, this is great!"

If you actually read it, you'll see that Feeley was criticizing prior bail reform efforts, which did fail. This is exactly what I teach as I go across the country presenting on bail. It's what PJI teaches. It's what Equal Justice Under Law and Civil Rights Corps teaches. It's what everyone on my side of this thing teaches. Both generations of bail reform in America failed to do what they intended -- for several reasons that I doubt PBUS has even thought of.

Feeley gives a fairly radical solution to the problems of race and poverty in the criminal justice system, which involves recognizing the inherent fragmentation of American Courts and applying "theories of management and public administration for guidance." Get it? I didn't think so. Feeley is a brilliant criminal justice guru, who is likely to be grossly misunderstood by people who think other people should pay to get out of jail.

The bigger issue is that BYU law held a symposium, in which a guy giving a keynote said prior bail reform efforts had failed, and in which two others said that money bail has caused high rates of pretrial detention.

Which is exactly what I've been saying for 10 years.

So, basically, if you like or share PBUS's Facebook post, you're agreeing with me.

Bail Industry Misleads Everyone About New York Bail Reform

The American Bail Coalition just posted a piece on Facebook saying, "Over 100 Community and Advocacy Groups Across New York Reject the Basic Precepts of the No Money Bail Movement." You can read all about that particular letter to New York's Governor here. ABC even has a nifty "Bail Reform" sign with a big red slash through it, as if to say these people don't want bail reform.

Well, before you like, share, or otherwise believe that particular headline, read this from the same letter: "New York must eliminate pretrial detention and money bail for all misdemeanors and nonviolent felonies." And, "For profit bail bonds must be eliminated." For everything else, the money can't detain. Does that sound like a letter that's rejecting the "no money bail movement?"

Really, if you read this entire letter by these advocates, you'll discover that they're pushing a type of bail reform that is far more radical than even I have pushed over the years. And they are justified in doing so; indeed, even though I presented a model release and detention system last Spring, I specifically took that model out to its edges and wrote that anything more limited than what I presented would be acceptable and perhaps better justified by the law and the research.

ABC knows the letter advocates the elimination of commercial sureties. ABC knows this letter presents a sort of bail reform far beyond what even I have promoted. So why mislead people by acting like it somehow goes against bail reform? Really. Why even post it?

The answer seems to be that ABC hopes that people (and especially bail agents) will only read its headlines, and not dive too deep into the substance of things. In short, ABC wants to make its agents think ABC is winning, when ABC most definitely is not. ABC wants agents to read the headline, share and like it, and then move on -- after sending the insurance companies all of their money, of course. 

Get this straight. The basic precept of the "no money bail movement" is no money bail or, at least, no money bail that detains, and the letter fully embraces that. What it rejects is the for profit bail industry.

Read the letter.

Really, just read it. 

The Bail Industry's New Mexico Problem

So now, after New Jersey, New Mexico is seeing the brunt of attacks against its criminal justice system by the bail industry. You've probably already seen them -- posts on various bogus websites saying, "Look At This Dangerous Guy -- FREE TO GO Under Bail Reform." They attack Chief Justice Daniels. They attack virtually anyone they can find who played any part in diminishing the industry's profits. And then the industry uses the same posts in other states to spread fear of reforming the money bail system in America.

The bail industry even got the Governor of New Mexico to declare that the state should "repeal and replace" the recent constitutional amendment, which passed with nearly 90% of the vote. By the way, last I read the legislature asked the Governor to come over and tell it what was wrong with the one that overwhelmingly passed and to provide her alternative, and she didn't go. I can guess why. Clearly, it's because she didn't know the answer on her own and the bail industry didn't know what to tell her.

There are lots of reasons why all this activity in New Mexico by the for profit bail industry is dumb. For one, most of the guys they list as "dangerous" would've been out under the old money-bail system, and if any of them committed a new crime on release, nobody would lose any money. The amendment was designed to allow judges to detain truly dangerous persons without bail, a concept the bail industry still hasn't quite grasped because one day it's for such a thing and the next day it isn't.

But I want to focus on how the American Bail Coalition (which takes its orders from the bail insurance companies) did the biggest flip flop in the history of bail in New Mexico, and ask why the bail agents are so forgiving of ABC and the insurance companies when they make these giant errors.

Back when the new constitutional bail amendment was written, ABC took credit for it, calling it a "historic compromise." High fives for the bail industry! You can read about how great they thought the amendment was back then right here.

But just last week, ABC called for a new constitutional amendment. Why? Well, because ABC didn't really understand New Mexico, New Mexico bail law, and, in fact, anything about writing constitutional amendments. Anyone paying attention could see that despite what ABC did to the amendment to reach its "historic compromise," it was likely going to spell the beginning of the end of money bail in that state. I knew it. A state legislator knew it (I wrote about that here). I'm pretty sure the bail agents knew it, too.

But ABC and the insurance companies didn't know it. And so, in this most recent post, ABC tries to downplay its previous role (ABC says it only wrote an op ed, but it really helped craft the constitutional language itself), and then spends most of its time personally attacking my friend, Justice Daniels. In fact, this is about the only thing that ABC and the insurance companies seem good at. Fight like crazy, lose, and then attack everyone personally. It happened in New Jersey. It happened in California. It's happening in New Mexico. The problem is that ABC and the insurance companies never take time to recognize a trend created by their laser focus on fighting everyone combined with their inability to even understand bail. 

It reminds me of when ABC wrote a brief in the Harris County case. Really, that should have been some crowning moment for ABC. A chance to really explain to the court what bail is and how to fix it. Instead, the judge dropped a footnote in its opinion and said ABC didn't really even know what the word "bail" meant. I wrote about that here.

So, in the end, this is all that ABC and the insurance companies do. They fight everyone and everything (a strategic problem all its own), but they don't really know what they're saying when they're fighting. They throw up arguments just to see what sticks. They change their stance on fundamental legal principles. Heck, they even change their stance on the very purpose of bail and the commercial surety industry itself. Talk about selling out.

When history records what happened to commercial bail in the third generation of bail reform, a footnote will read that the bail industry tried to mount a defense, but its inability of those leading that defense to understand the consequences of a strategy based on fighting everything, combined with its ignorance of its own industry, caused it to collapse.

The bail industry's New Mexico problem is that it shows all of this in full, odorous bloom.

Bail Insurance Companies -- "We Care About Victims, Right?"

The bail insurance companies continue to search for a reason for their existence. In its latest post, one bail insurance company says, “The bail industry . . . has always been about justice for the victim.” It has nothing to do with release, he says: “The bail industry doesn’t release defendants from jail.” No, now it’s all about the victim. This is a huge shift from other purposes the bail industry has floated in the past. But let’s just see how that industry stacks up with victims in the representative case of Maurice Clemmons, a case that is horrible, but indicative of one of the big problems with money bail.

Clemmons had a long and violent criminal history, and at one point he was sentenced to long prison terms. In 2000, Governor Mike Huckabee of Arkansas commuted a 108 year sentence to 47 years, making Clemmons eligible for parole. Violent crimes, parole violations, and further paroles followed. Then, in 2009, he was arrested for assaulting two police officers. Without any risk assessment, without seeing a judge, and without any supervision, Clemmons was released on that charge by paying a bondsman a fee for a $40,000 bond. Oh, and I’m pretty sure that when that particular transaction occurred, nobody checked with the alleged victims in the current case, or uttered a single word about future victims. Clemmons just paid and he got out. 

Within just a few days, Clemmons’ mental state worsened, and police arrested him for raping two children ages 11 and 12. New crimes, new victims. When the judge set Clemmons’ new bail amount at $190,000, he apparently believed Clemmons would stay in jail. After all, he’d been evaluated by two psychologists, who said Clemmons was dangerous and likely to commit further violent acts, and it seemed unlikely that anyone could afford a nearly $20,000 fee to get out of jail. Nevertheless, apparently giving Clemmons a discount from the usual 10% fee, a bail bondsman helped secure Clemmons’ release. Now I’m not certain, but I doubt very seriously that anyone from that commercial bail bond company talked to any of the previous victims in any of Clemmons’ cases, and they certainly didn’t seem to care about any future victims.

Future victims? Oh, yes, that’s how the story ends because within one week, Clemmons traveled to Parkland, Washington, walked into a coffee shop and shot and killed four police officers who were getting ready for their shifts.

As in virtually every other state, in Washington State you can’t forfeit the money on a bail bond for anything but failure to appear, so I’m assuming that the bail bondsmen covering the $190,000 didn’t lose any money on this deal.  

And that, my friends, is how the bail industry truly deals with victims. In short, it could care less.  

And my conclusion comes from personal experience, too. I’ve watched thousands of bail settings, and I’ve seen both prosecutors and police speak about victims. I’ve heard victims speak themselves. Heck, I’ve even seen victims ask the court to let the accused out. But I’ve never once seen a commercial surety say anything even once in any bail setting, let alone about a victim. Just today I’m reading that the man who went on a shooting rampage in California was out on a bail bond with something like a $160,000 financial condition. You tell me how in the world the bail insurance companies helped any of the 14 dead and injured in that case, let alone the guy the shooter allegedly stabbed before he went nuts. Wait until this all shakes out – I predict bad things for money bail due to this case.  

In fact, if anyone out there made money in bailing out Kevin Neal, why don’t you just give all that money back to the various victims you care so much about. Then, start doing that every time someone commits a crime while on pretrial release. Heaven forbid, right?

Anyway, with that one bogus line about its purpose being justice for victims, the bail insurance company lobbyist has also apparently given up altogether on the bail industry’s otherwise noble purpose that existed since it began: to assure the release of bailable defendants so as to uphold notions of American freedom and liberty inherent in our system of pretrial release.

The bail industry’s (and, indeed, bail’s) articulated purpose has never been about justice for the victim; its purpose has always been based in the constitutional and statutory rights of all American persons to be free while facing charges in our criminal justice system. For a while in American history, lots of people were being held despite being “bailable” under current law. The bail industry was this country’s solution to that problem. Surely, we’ve always cared about victims of crime, even to the extent of enacting victims’ rights amendments to state constitutions and preventive detention (no bail) language to keep truly dangerous defendants in jail. But bail (release) has always been a defendant right, and it was always meant to mean the right to release.

In Stack v. Boyle, the case in which the Supreme Court equated the right to bail with “the right to release” and “the right to freedom before conviction,” Justice Jackson wrote: “The practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty. Without this conditional privilege, even those wrongly accused are punished by a period of imprisonment while awaiting trial, and are handicapped in consulting counsel, searching for evidence and witnesses, and preparing a defense.”

That purpose, to help with release, didn’t cover everyone, but it didn’t have to. It covered release, which is a pretty huge thing. In fact, right now I have people who are on my side of bail reform co-opting what should be the bail industry’s purpose to release virtually all defendants pretrial. The problem is that the industry has never really been about the victim (in 1898 it was helping America figure out a way to release bailable defendants who had no personal sureties), and it shouldn’t try to be about victims now because it will just seem ridiculous. Bail, and the means for release through the commercial industry, has always been about the defendant. And bail, release, and defendant’s rights are all covered by our constitutions. That should be enough.

In sum, the bail industry once had a pretty noble purpose. But now, in their quest to remain profitable, the bail insurance lobbyists are tossing that purpose aside for whatever they think will keep them afloat. One day the presumption of innocence doesn’t apply, the next day it does. One day it’s all about freedom, the next day it’s not about freedom. One day it’s public safety, the next day it’s back to court appearance.

In the end, if the industry itself doesn’t even know its own purpose, there’s absolutely no way it will survive.

By the way, the lobbyist also says that none of us bail reformers mention victims, which is absolutely untrue. First, I’m a victim of crime, and my family members have been victims of violent crime. Moreover, everybody in the justice system cares about victims, and to say we don’t is simply stupid. I don’t expect a bail insurance guy to know that, though, because he’s simply not at any of the criminal justice meetings I attend. Nevertheless, even before a few of us even did a pilot project (just a fourteen week pilot, so nothing permanent) in Colorado, we spoke to every victim’s representative in the state, who all understood and agreed to a better system than the money bail system (one that involved less random releases and that clearly could address public safety for past and future victims). All along the way in this movement, we have included victim reps and sometimes victims themselves at every major event. Moreover, in addition to prosecutors and law enforcement officers, who typically carry the weight on victim’s issues, the Pretrial Justice Institute has at least two board members with national victim advocate experience.  

What do the bail insurance lobbyists have? Just a tendency to make up literally anything – no matter how false and ridiculous – to continue making all that money. 

Yeah, I know this blog is kind of long. But what this bail insurance guy said is really pretty outrageous.    

The Last Days of Bail

"The suggested system does away with monetary bail. [Money] bail arose and flowered during a period when the law had little regard for the rights of the poor. Debtors prisons flourished. Workhouses were used to contain paupers, who were considered a moral pestilence. The adherence to the archaic system of monetary bail is inconsistent with our present legal thinking. The monetary bail system cannot long survive the recent recognition of the precept that a poor man is entitled to the same justice as the wealthy man."

John V. Ryan, The Last Days of Bail (1967)

Academy of Justice Report on Reforming Criminal Justice

If you follow this this link, you'll find an excellent paper written by Megan Stevenson and Sandra G. Mayson on pretrial release and detention within a larger report by the Academy For Justice titled, Reforming Criminal Justice.

That report is an ambitious attempt to "bridge the gap between scholarship on the books and legal reform on the ground," which is critical in the field of pretrial release and detention. 

The Academy for Justice itself thanks the Charles Koch Foundation, Arizona State University, and the Sandra Day O'Connor College of Law (ASU Law) for their support. 

Bail Industry Language

Deal Bail Industry;

I know you've been struggling for 10 years now to find your footing, but I still believe you haven't quite gotten a handle on what you should and should not say about bail. Accordingly, I'm giving you the following advice about what not to say:

You can't say that money bail makes the defendant "accountable" because being accountable is being held responsible for one's actions, and in bail we haven't even proven that anyone has done anything yet. Accountability is a punishment term, so find a better word.

You can't even say that commercial sureties are "accountable" when, in fact, they push off all the liability and costs to the defendants and their families. Commercial sureties aren't accountable for anything. And bail insurance companies are about fourteen steps removed from even that level of accountability. They literally don't do anything.

You can't say that bail is all about "freedom" on the one hand, and then post a billion Facebook stories about all the horrible people who shouldn't be let out of jail. Face it, you'd be fine with them being let out of jail so long as they paid some money. Your inconsistencies are killing you.

You can't say that "bail is constitutionally protected" when you define bail as money or, worse, as commercial bail. Bail as a process of conditional release is protected by the constitution, not money bail or you. We're not trying to get rid of bail -- we're trying to make it the process of release it was always meant to be, and it just so happens that money gets in the way of that.

You can't talk about public safety period, so stop trying. You can't forfeit money on a bail bond for anything but failure to appear for court. You all actually make a lot of money when people commit crimes while on pretrial release so long as they don't skip court, and you know it. I actually heard a bail insurance dude recently try to link his business (court appearance) to public safety by saying, "When they're coming back to court, they aren't committing new crimes." Man, that's just stupid. What does he mean -- does he mean that while they're actually on the bus coming to court they can't possibly commit a crime? You know public safety is your Achilles heel, but it's the bail insurance companies that created that dilemma over the last several decades. They're the ones who always fought when states tried to allow forfeiture of a bail bond for new crimes. They did it again most recently in Pennsylvania.

You can't say, "They're not in jail because they're poor, they're in jail because of (fill in the blank)." Most of the times that you fill in this blank, you fill it in with something the defendant did, which means the money is punishment and thus unconstitutional. And beyond this, saying that they can't afford their charges or criminal history is just another way of saying they can't afford their risk. Not affording their risk means using money to detain, which is unconstitutional whether it's intentional or unintentional. If you don't know what I'm talking about, you need to read my last paper. And, by the way, if even one person is in jail because he's poor, we need to fix the system.

Oh, and quit bringing up Martin Luther King. The fact that he was once bailed out back in the day is beside the point. If he were alive today, I'm pretty sure he wouldn't be a strong advocate for the money bail system. I already wrote about that here.

I'm not going to help you with what to say because I think the bail insurance lobbyists need to figure that out for themselves. Besides, I've told you all enough of that already, and I'm pretty sure nobody listened.

Just a bit of friendly advice!

Very truly yours,

Tim

ABC Insults California Chief Justice -- Wonders, " Why Aren't We Winning?"

The American Bail Coalition took its turn presenting to the California Detention Workgroup right after me. ABC got its chance to forward its argument. It put together tons of "resources." And it had the list of principles the Chief Justice wanted the Workgroup to consider. Based on the way bail was done in California, it was clear that the Workgroup was looking at ways to improve the process.

What did ABC likely give them? Arguments for keeping everything the same.

And then, when the report comes out and pretty much decides not to keep everything the same, what does ABC do? Insult the Chief Justice.

Yep, for real. In its statement, ABC said the Chief Justice ignored reality, didn't keep her oath of office, was soft on crime, and was playing politics. Nice going ABC. In your zeal to make yourself look good, you've now personally insulted the highest judge in the state of California. You deserve whatever comes from that.

The bail industry has fundamental flaws with its current strategy. As I've said before, this strategy is baked into the fabric of the bail industry's insurance lobbyists, and has existed since the 1960s, when a bail industry representative told attendees at the National Bail Conference basically, "Good luck trying to get rid of us."

So, okay bail agents, keep on sending ABC and the insurance companies all that money. After all, they help pay your losses . . .  oh, wait, they don't. Well, then they hire people with great arguments for keeping the bail industry alive . . .  oh, wait, maybe not. Well, at least they aren't going around insulting judges, the very people who can eliminate your whole industry simply by choosing not to use you . . . oh, wait.

The New Mexico Governor and Bail Reform

I like when Governors get involved with bail reform. I really do. But with the New Mexico Governor's entry into the world of bail reform calling for the repeal of the constitutional bail amendment through her Facebook account, I have four quick things to say.

First, she was for the New Mexico constitutional amendment in September before the election. Given that it passed with 87% of the vote, I'll bet she even voted for it.  Before the election, the bail insurance companies even called it a "historic" compromise. Then they realized that the New Mexico Supreme Court had the ability to radically diminish the use of money at bail. They had serious buyer's remorse when they learned they couldn't just lobby the legislature to keep themselves in business, and I guess they managed to spread that to the Governor.

Second, I don't like when bail reform gets political, because it doesn't need to. But by using the phrase "repeal and replacement" -- perhaps the most political phrase of the 21st Century -- along with faulting judges for "return[ing] criminals back to our neighborhoods" as well as repeating he woefully tired phrase "catch and release," she has obviously bought into the bail industry's political rhetoric of trying to show that any attempt at bail reform is an Obama-era program that somehow hurts public safety (the last desperate cry of defenders of the status quo). Just remember, the bail insurance companies don't care about public safety -- up until the amendment, they were quite happy helping to release any and all dangerous defendants in New Mexico so long as they had some money. Bottom line: Bail reform isn't political if you actually know what bail reform is.

Third, the substance of this issue shows just how little the Governor actually understands. The case she cites, William Wilson, could have been detained under the constitutional amendment. So there's nothing wrong with the amendment in that case.  In the old days, some judge would have given William a money bond, and William would have been out on the streets anyway because a Supreme Court opinion said New Mexico judges couldn't use money to detain. Money won't keep anyone safe, so the constitutional amendment allows judges to detain, without money, dangerous defendants, just like the Governor wanted. And there's nothing you could add to the constitution to do any more than just allow judges the opportunity to detain someone. Laws that have that made persons automatically detainable for various reasons have always been struck as unconstitutional. Even rebuttable presumptions have to be rebuttable.

So if the constitutional amendment did what it was supposed to do -- i.e., allow a judge to detain William -- why wasn't he detained? Well, it could be because of the court rules (which is ABC's beef), but if that's the case, then I suppose that's just tough. In New Mexico, the Supreme Court's rules govern bail, and the legislature can't change them. I suppose that's why she says she wants to repeal and replace the constitutional amendment; the bail insurance companies finally figured out that the amendment wasn't the best thing for their industry after all, and going back to change the constitution is really the only way they can undo it.

But the fact that William wasn't detained could also be due to the fact that no matter what we do, we simply cannot predict individual defendant behavior. Indeed, the more serious and violent crime gets, the less able we are to predict it. We couldn't predict it in the money bail system either, but at least this way New Mexico gets at least a shot at detention for certain "dangerous" defendants.

I imagine if you look hard at the case she cites, you'll see that the judge did the absolute best he or she could do to balance individual freedom with public safety and court appearance. William could've been detained, but something in the case -- including the inability to predict individual risk under any bail system -- obviously led to his release.

So, Governor, respectfully: (1) the amendment isn't really your problem based on what you're saying (it's someone else' problem, but I'll let you figure that out on your own); (2) don't politicize bail reform -- leave that to the insurance companies who don't care one bit about New Mexico residents; and (3) look into the issues before you take a stand on something. If you'd have looked into the constitutional amendment before you said you were for it, you would've not only seen this coming, you would've actually understood why it was inevitable.

Oh, and (4): On Facebook? Really?

American Bail Agent Coalition Part II

One thing I like about Facebook is that if you get up before the guy operating some Facebook page, you can read the comments to a post before they get deleted. I read the comments on the post announcing ABC's upcoming agent conference (they're gone now), and there were a bunch of them, mostly in three categories: (1) I have to choose between yours and and the one by PBUS; (2) you didn't give me enough time (it's only a month away); and (3) how can I know what to do if you don't have an agenda?

So this thing looks a lot like last year, which I wrote about here. Mostly chaotic.

ABC will likely do the same thing this year by trying to convince you that everything is turning around, and that you need to keep fighting everyone. But really, do you think things got better for the for-profit bail industry in America last year? Plus, they'll leave a lot out. For example, they might tell you that they talked DOJ into stopping any funding for pretrial stuff, but guess what? We replaced all that money and a lot more with both conservative and liberal private donors.

By the way, I also followed a link provided by ABC to the "AGENT ONLY Private Page on Facebook" for the ABAC, and guess what? It wasn't exactly private, and there's a whole bunch of people listed as members who are insurance-only people. ABC's afraid of a truly "agent only" page, so it's characteristic of ABC that it would say it's "agent only" when it really isn't.

The conference, the new agent group, the strategy, and even the Facebook pages are what I've come to expect from ABC. Just remember, bail agents, because the solution to the issue of bail in America doesn't involve insurance companies, those companies will fight everyone and everything that represents any change to the status quo. But states don't want the status quo. And until ABC can provide an answer to states who truly want something different, they'll fight the states, turn them against commercial bail, and take you all down with it. 

The American Bail Agent Coalition?

Yep, that’s right. ABC is starting the American Bail Agent Coalition. Remember when I wrote about the new communications guy they hired? Well, this same guy’s job description is also to try to build a bridge between agents and the insurance companies. And for that reason, you should really look at this thing with some hefty skepticism. Because he’s not really a bail agent anymore – he’s now on the insurance payroll.

I’ve been telling agents for years that the insurance companies aren’t doing their agents any favors. And think about it – they never have. Over the decades these companies have made sure agents take all the risk and cover all the losses. As I’ve often said, it’s like the mafia, with agents dropping bags of money on the porches of the insurance companies. The insurance companies are now spending all that agent-earned money to fight everything, because when a company makes money for doing literally nothing, any change to the status quo means losing money (and that money probably isn’t just sitting in a pile waiting to be used; it’s probably going to some pretty cushy insurance executive salaries). But, really, what has all the fighting gotten you so far?  

I’ve checked out the ABAC Facebook page, and you really don’t have to bother. The same guy running the US Bail Reform page is obviously doing this one and ABC’s, and so it’s got all the same posts. Mostly it has the usual – “Look at this dangerous guy RELEASED ON A PINKY PROMISE!” stories.

It’s also got a funny picture that repeats the words “public safety” over and over. Really, the inherent lack of concern over public safety is the one thing doing the most damage to your industry, and saying the words “public safety” over and over won’t change that. Once people look into it and see that you can’t forfeit money for new crimes, they quickly see that whatever the industry says about public safety is disingenuous. ABC, PBUS, ABAC, and all the people behind those other bogus websites and pages out there would gladly release that really dangerous guy if he only had a few hundred bucks, and so it’s clear that the bail industry and public safety aren’t even really a thing. No wonder the ABAC page has to repeat it so much – even it doesn’t believe it.  

Look, the guy that ABC hired used to be an agent, but now he’s an insurance guy being paid insurance money to convince you to agree to the insurance company strategy. And don’t be fooled. PBUS isn’t here for the individual agent, either. If it were, it would’ve figured out a long time ago how to keep from sending the insurance companies all that money so that they can do absolutely nothing. And it would’ve pretty quickly seen that fighting literally everyone on every single issue will only come back to bite you. PBUS may not be “all bail insurance, all the time,” but it’s infested with insurance dudes and it has the bail insurance mentality. I don’t see that changing without some really serious adjustments at the top. 

But now, aligned as they may be, it’s clear that ABC has grown weary of the really whacked out strategy of PBUS, which has brought in some pretty nutty people and super-weird ideas (suing on products liability?). But ABC’s really no better, and it’s all the uninformed fighting that both groups do that will ultimately kill the industry in any event. That’s because neither ABC nor PBUS has any strategy that doesn’t involve fighting to the death. In short, they have no solution for the states. We do.  

Bail agents, I know I said I gave up on you, but I feel compelled to advise you at least one more time. So just remember that there’s no future for bail insurance companies in American pretrial release and detention. There’s no need, because even if we keep money, those really big numbers are going away. The sooner you cut those companies loose and work on your own strategy, the longer you’ll stay in business. Hey, it won’t be easy, but don’t tell me it’s impossible. If you think so, you’ve just been listening to the bail insurance companies too much.  

Bail Industry: "Money Bail Only For Felonies?"

Here's a great article summarizing the current bail reform movement, titled, "The Fight to Fix America's Broken Bail System." I have to say there's a bit of vindication in hearing people call it "broken." It wasn't that long ago that I had to listen to goofballs in my own county saying, "If it ain't broke, don't fix it." Wogga muk gubba pum wup!

In the article, ABC says it just wants to preserve money bail in felony cases, saying, "The key core of our business is high risk felony cases. That's where judges should use us."

The author of the article says that the statement is "belied" by the bail industry's actions, and I agree. After all, the bail insurance companies are fighting like crazy to keep money bail in all cases, not just felonies. The federal lawsuit in Harris County only deals with misdemeanors, and the insurance companies have spent more of the bail agents' money on that case than in any to date.

So why make such a blatantly false statement? I have no answer except that the industry has been making any and all statements and arguments lately just to see what sticks. They say bail should be left to the legislatures, and then they bring their own legal claims to court (by the way, the industry has been using the courts to get its way for decades; it just doesn't like it when things go the opposite direction). They say the constitutional amendment in New Mexico is some great compromise between the industry and the state, and then they sue the state. They say there are no people in jail due to lack of money, then they say that it's time they admit that there are. In a federal trial court they say people are in jail because they want to be in jail, and then later in the same case they say those people are too dangerous to release. Now they say they only want money bail for felonies, but they fight like crazy to keep it in all cases. Makes your head spin.

This is a sign of an industry that either doesn't understand what it wants, or that's simply desperate to find the one argument that miraculously lets everything just stay the same -- preferably with them making gobs of money without doing anything. Then again, I've said before that ABC doesn't even know what the term "bail" means, so the whole thing might just be incompetence.

Really, the bail insurance "strategy" is just a confused mess, with ABC and PBUS flailing with schizophrenic arguments, groundless lawsuits, worthless PR campaigns, and bogus Facebook posts. Meanwhile, justice officials are quickly recognizing that the bail industry is simply in the way.

No wonder California has decided to look into whether there's some basic flaws in the bail insurance model with an eye toward regulation. Oh wait, that's a different blog!

The Heritage Foundation’s Horrible History of Bail

The bail insurance companies – oops, I mean the Heritage Foundation – has issued its “History of Cash Bail,” and man, it’s atrocious. It’s rife with flaws, misunderstandings concerning the history and the law, and misleading statements designed to persuade others to retain the status quo and the money bail system. I wrote up about 20 pages on it in only about three hours, which I’m sending to the world, but let me just mention four big errors.

The title, “The History of Cash Bail,” is incredibly misleading. “Cash bail,” as we are all using it today, is a shorthand way to describe secured financial conditions, and those conditions were only used in America starting in about the 1800s. But because the bail reform movement has used the term “cash bail” as a shorthand reference to describe secured financial conditions, the Heritage Foundation, in an argument to keep the status quo, misleads people by trying to argue that “cash bail” or “money bail” has been around forever. This is precisely the bail insurance stand on this, but, unfortunately, both the bail insurance companies and Heritage are disastrously wrong. Under the personal surety system used in both England and America until the 1800s, personal sureties watched over defendants using what we would call today “unsecured bonds,” which involved a system of recognizances requiring people to promise to pay amounts only in the event of default. The sureties could not profit or be indemnified, so money only rarely stood in the way of release (when it did, it was usually considered an abuse). “Secured” financial conditions – requiring something to be paid up front – started in the early to mid-1800s and began to flourish only with the rise of commercial bail bondsmen. Really, until the 1900s, no historian ever called bail “cash bail” or “money bail” when creating a history document, likely because the history of those things would be quite short. And historical accounts of "money bail" in the 1900s (and even the 1800s, such as with De Tocqueville) are uniformly critical. This error permeates the entire Heritage document.

The abstract is also wrong when it says that bail reformers are "seeking to erase the Bail Clause from the Bill of Rights." Again, the bail industry likes people to believe that bail equals money, so that they can argue the elimination of money means the erosion of the right to bail. Well, bail is not money; it's a process of conditional release, and everyone who has looked at the history of bail comes to the same conclusion. Moreover, to the extent that bail reformers are using the courts, they are merely trying to get them to apply other constitutional protections -- such as due process and equal protection -- to a fundamentally unfair money bail system. Heritage merely repeats the main bail insurance company claim that all bail matters must be decided under the Eighth Amendment to avoid talking about fairness. 

The key points are also seriously flawed. I’ll just give one example: Key point number one says a fundamental purpose of bail is to “guarantee” appearance. No lawyer would ever say that, as the Supreme Court has made it clear that “reasonable assurance,” and not complete assurance, is all we can expect from any condition of release. Maybe it’s okay to misstate the law in bail. Oh, wait, no it’s not.

The Conclusion makes an unforgivable error. In the conclusion, Heritage mentions a balance between release and “the need of society to protect against flight and ensure punishment.” The balance, actually, is between release, court appearance, and public safety during the pretrial phase of the case. Saying that the balance includes ensuring punishment is so wrong and monstrously ridiculous that it has never been articulated in that way before. There is simply no basis for saying that bail has anything to do with punishment – indeed, bail designed to punish or to otherwise make it easier to punish (such as by imposing money as a "penalty" for the charge or to coerce a plea) is clearly unconstitutional. This one line shows a complete misunderstanding not only of bail, but of the entire American criminal justice system, and the document should be discarded on that basis alone. In fact, I’m going to go out on a limb here and say that the Heritage Foundation will likely change their conclusion to not mention punishment, or will re-phrase the whole thing to avoid the constitutional error. You just watch.

In between these things, I enumerate roughly thirty mostly big-time errors, which are explained in the twenty page document.  

In my original history document for PJI, I mentioned a video in which a bail insurance guy said he wrote up some sort of research sheet on pretrial services agencies, but that he got ALEC (the bad) to put its name on it because “we didn’t want it to look like it came from a bail bonding organization – we wanted it to look like it came from some neutral, political source.” Recently, one of the bail industry’s flunkies also wrote a history of bail piece, which I blogged about here.  Now, I’m not saying that Heritage just stamped their name on a bail insurance company document, but if it didn’t, then it should say it did, because this thing is so wrong and misleading it would actually be better for the Heritage Foundation to keep its distance from it. Nevertheless, this document certainly looks like an ABC document; it's claims are uncannily similar -- if not identical -- to the claims made by the bail insurance companies in this generation of reform. Indeed, one of the main premises of the Heritage history, that bail issues should be decided by legislatures and not courts, favors the for-profit bail industry for the simple reason that bail insurance companies have had decades of experience giving money to lawmakers to obtain favorable legislation.  

If you want to read about the history of bail, start with my Fundamentals paper and the citations therein, then read my Money paper, and then read my Model Bail Laws paper, which shows how the history can inform re-drawing the line between release and detention (none of which are cited by Heritage). Or, really, read literally anything else besides the Heritage Foundation's History of Cash Bail. 

This is serious. Just recently, two inmates in two separate jails in Colorado died while being "held on bail," meaning a money amount was set, but it likely unlawfully kept them from obtaining release. Heritage is essentially using a misleading history to maintain the status quo, but the status quo is frequently tragic. Indeed, a proper history of bail shows just how tragic "cash bail" really is.

To the authors: Look, I'm sure you guys are nice and smart and really mean well, but you need to watch who you jump in with. I've seen many smart and talented people fall under the spell of the bail insurance companies (often for what I call "bail fame"), but those companies will mislead you, use you up, and toss you aside. It already happened to the last guy who wrote a history for them. A fine organization like the Heritage Foundation should be careful not to be on the wrong side of history. There is a conservative viewpoint on all this, and it mostly surrounds the crucial issue of how large pretrial detention should be in a moneyless system. Don't get sidetracked with a dying industry. That is, unless you did this thing yourselves. If so, you're on your own.  

Bail Industry Loses Hard in New Jersey -- Not Even Close

ABC praises the fact that the federal court in New Jersey found that the plaintiff had standing to sue over bail reform! Woo Hoo! Standing!

All that means is that the person suing is the person who can sue. It's a jurisdictional matter that is so fundamental that most lawyers -- but apparently not ABC's -- make sure they have it before they ever go near the courthouse. The fact that it even came up and seems like it's going to eventually exclude Lexington National means that these lawyers need a nice refresher course on federal jurisdiction.

When it comes to a motion for preliminary injunction, there are four factors that the court balances. I won't bore you all of them because the industry failed to show any of them. Like none. Just like in New Mexico. Zero. Zip.

I will, however, focus a second on the factor that says the party seeking to get the injunction has to show "likelihood of success on the merits." This is the big one, because it gives us a glimpse of the actual legal arguments and how they might eventually stand up if, in fact, the case ever goes to trial.

But as you may have surmised by now, the bail industry didn't show likelihood of success on any legal claim. The Judge wrote: "In summary, neither Holland nor Lexington has shown likelihood of success on the merits of their Eighth Amendment, Fourteenth Amendment, and Fourth Amendment claims. Neither plaintiff has made a showing of a reasonable probability of eventual success on any claim examined above." 

That gives you a pretty good idea of how things will go if this thing ever gets to trial.

Let me quote from the judge: "Finally, if these considerations were a close call -- which the Court does not find them to be -- then the balance would even further tip in favor of denying the injunction because of doubts about Lexington's standing and the arguments favoring Younger abstention."

Bail industry likely to succeed on the merits? Nope. Not even close.

What a Difference Five Years Makes!

Back in 2012, the bail insurance companies released a "PR Web" article saying, "Judges Confirm That Bail Bond Agents Play an Important Role in the Criminal Justice System." You see, some bail insurance dudes apparently went to the American Judges Association Conference that year, conducted a "survey," and concluded that 90% of judges say bail agents play an important role. The article is fascinating, as the insurance dude describes handing out his unbiased survey along with several hundred "I Love My Judge" buttons. I think that's how Pew does it, right?

Oh well, cut to 2017, and you can read the new American Judge's Association Resolution Number 2, in which the association urges judges to, among other things, "call for the elimination of commercially secured bonds at any time during the pretrial phase."

Ouch.

So, I think the lesson is twofold. First, the ABC/PBUS strategy of fighting everything is really backfiring. Second, don't necessarily believe what you read from the bail insurance dudes.  

Bail Insurance Companies’ New Media Strategy – “Fake News”

As much as I hate the term, here’s yet another blog about “fake news,” only because the bail insurance companies don’t have the real kind.  

I was reading this this story about so-called fake news, and it focuses on a particular city in Veles, Yugoslavia, that has made fake news a sort-of cottage industry. According to the story, over 100 bogus websites were tracked to this one city, mostly run by young twenty-somethings hoping to make a few bucks when people merely click to read past the provocative headline. For those of you not paying attention, fake news is generally described as propaganda consisting of misleading information designed either to spread a message or make a few bucks. You make money by “baiting” people with a sensational or provocative headline, and then by getting them to click on it. It’s called “clickbait.”

This particular article focuses on one of the young dudes who creates fake news, but also on a guy named Mirko Ceselkoski, who the article calls the “clickbait coach,” and who used to specialize in websites spreading celebrity gossip and discussing muscle cars. Today, Mirko estimates that he helps about 100 youngsters – the article calls them his “pupils” – operating U.S. political news sites.

But his advice on how to create those sites is what really caught my eye. He said he tries to teach people to pick a story that is already trending somewhat, and then make it sensational, mostly by creating a really shocking headline. “The title is the most important part,” he said. Then, he said, you need to try to make your website look professional by mimicking legitimate sites with rolling banners and phrases like “breaking news” on them. Apparently the title of the site is key, too, as many of them use the actual word “news,” which, I suppose, makes people think they’re, well, legitimate news sites.

And then it hit me! That’s exactly what the bail insurance companies are doing. The title? Got it – says “U.S. Bail Reform News,” so it even has the word “news” in it just in case we weren’t sure. Professional look? Yeah, looks pretty professional and uses the “breaking news” phrase a lot. Titles of the articles? Here’s one: “San Francisco, CA – Suspected child molester FREE TO GO after Judge Joseph Quinn overrules bail setting.” Yep, pretty sensational, and it even names a judge in it so it’s nice and personal. Of course, the article itself never mentions that the same suspected molester would also have been FREE TO GO if he had to pay money to a bondsman, and that if he went out and molested another child, neither he nor the bondsman would forfeit any money. Details.

So, even though I hate the phrase “fake news,” I’m going to have to get used to saying it because the bail insurance companies are now doing it with gusto. And really, this isn’t new. Back in 2011 or so, I documented a speech in which a bail insurance guy said he was putting out information under another group’s title because “we didn’t want it to look like it came from a bail bonding organization – we wanted it to look like it came from some neutral, political source.” And just this year, the insurance companies got caught using another dubious news site to spread misleading information about New Jersey Bail reform.

By the way, it’s been a while since I mentioned the greedy weasels doing all this stuff – you know, the ones who don’t care if poor people stay in jail or if dangerous people pay their way out. Plus, a couple of them have come and gone, so here are the current members of ABC:

AIA Surety

American Surety Company

Bankers Surety (Bankers Financial Corporation)

Black Diamond Insurance Company

Financial Casualty and Surety – A new one! Welcome!

Lexington National Insurance Corporation

Sun Surety Insurance Company

Universal Fire and Casualty Insurance Company

Whitecap Surety

So, bail insurance dudes, because your mothers probably taught you not to lie, and because “fake news” is just a weasel’s way of lying, you get the Weasel Pic! 

Bail Industry Loses Hard in New Mexico

ABC and PBUS decided on a new strategy lately -- suing the states doing bail reform. It must have seemed like a really good idea at the big PBUS meeting, right?

Yesterday, the judge issued an order denying the industry's request for preliminary injunction in the New Mexico case. And man, that judge denied it hard.

Each substantive claim by the industry is quickly and succinctly knocked down -- sometimes in only one or two double-spaced paragraphs. That's an omen of things to come if and when the industry decides to go to trial. That is, unless you all think the same substantive claim will somehow become rational or legally meritorious between now and then.

Keep up the great work ABC and PBUS! The more you sue the people doing bail reform, the less likely it is that anyone else will even consider including you in any solution.

Bail Insurance Companies Hire New Media Guy!

This may seem like a gimme, but wouldn't you think that if a bunch of billionaire insurance companies wanted a media guy, they'd hire someone with experience in big-time media work or at least a graduate from a top American journalism school? Yes, you'd think.

But instead, they hire an ex-bondsman from New Jersey, whose expertise is a couple of websites that post stories under the genre of "Dangerous Bank Robber Free to Go on a Handshake!"

Mainstream media has already figured out the major flaw in the thinking behind these stories: in the previous world, bail agents would be quite happy releasing dangerous people so long as they pay a bit of money. As I've written about a million times before, money won't keep you safe.

So why him? I mean the posts won't work at all in New Jersey. In fact, the industry is gone there and if NJ cares about dangerous defendants, they have the ability to lock them up without money. And they probably won't work in New Mexico -- like I said, ABC screwed up in not knowing about the fact that NM was a "court rules" state. And it looks like they won't work very well anywhere else; everyone who studies bail quickly realizes the flaw in the bail industry's attempt to spin things concerning money toward public safety when money has nothing to do with public safety.

The answer is that this guy and his posts are designed to keep the rest of you bail agents from jumping ship. His entire shtick is "Bail Reform is Failing," and "Hey Look, We're Winning!" That's the stuff ABC has been trying to sell you now for 10 years through three or four different lobbyists. Think about it. Do you feel like you're winning this thing? As long as you think you are, you'll just keep sending in all that money.

I've been telling people for 10 years that bail reform is inevitable. That means there's no turning back. There's no "losing momentum," as ABC says. The only question now is how it will shake out when it comes to moneyless detention. I've told bail agents for years how they could be a part of the future of American pretrial release and detention, but they haven't listened.

ABC says they hired the guy "to act as a liaison between ABC and bail agents" and to "improve efforts when it comes to media and social media."

By hiring this particular guy, though, ABC is showing no real attempt to influence legitimate media. So the main reason must be the liaison part. But don't be fooled; this hire is mostly designed to keep you bail agents in the dark. I assume you'll start seeing the same sorts of posts in every state, and if that's all you read you'll be tempted to hang in there and keep sending your money to the insurance companies instead of forcing them to change their failing strategy, which has no basis in reality.

In fact, if you keep clinging to ABC and the insurance companies that are behind it, then I predict that on that day that the very last bail bondsman shuts his doors, you'll still read a Facebook post by usbailreformnews, sponsored by ABC, that says, "Bail Reform Failed! Hey Look, We Won!"

A Tipping Point in Bail Reform?

I should have spent a bit more time talking about the Conference of Chief Justices’ brief in the Harris County case because it really is remarkable. You can find it here.

Remember that Harris County was sued in federal court over its bail practices, which were built upon the Texas bail laws. In a preliminary injunction, the federal district court judge essentially said that the way Harris County was using money bail violated the U.S. Constitution.

Now normally if that happened in any other area of the law, you’d see all the other states join together with Texas and say, “Whoa, now, we don’t need a federal court telling us how to do stuff – back off and we’ll take care of it in our court system.” And in most other areas of the law, the federal court might think, “Well, maybe I should just defer to the states on this one.”

But when it comes to bail and no bail, the Conference of Chief Justices – made up of the chief justice in every state, D.C., and American territories – essentially said the opposite. It said, “No, we actually need some help from the federal court because, “Despite general consensus and some notable reform, the promise of equal pretrial treatment for indigent defendants remains elusive.” In fact, it said, “Current bail reform practices will remain largely stalled pending clearly articulated constitutional principles that protect public safety and the pretrial rights of indigent defendants.”

The CCJ wrote that technically it wasn’t taking any sides, but then it came right out and wrote: “The Fourteenth Amendment prohibits the use of monetary bail that results in the detention of indigent defendants solely due to inability to pay.” There’s a reason why ABC went on a rant after the CCJ filed its brief, basically calling the justices liars (or “half” liars), blind to the truth, and arrogant (by the way, great strategy, ABC!). Of all the amicus briefs, this is the one that flattens the bail industry. This brief might irritate you, ABC, but you brought it on yourself by fighting the justices at every turn. This generation of reform could have been defined by the bail industry helping the states and the chief justices to find the answers; instead, you all turned it into a war with you versus everyone else. 

To me, the only thing holding back the Fifth Circuit Court of Appeals from affirming the district court would be some concern that it might be infringing on an area that the states felt they could handle. In this brief, the CCJ says, “Go ahead – you’re not infringing and we actually need it.”

If there’s a tipping point in this generation of American bail reform, then August 9, 2017, the day when every chief justice in America asked the federal courts to set limits on how the states use money bail, might just be it.

So Much Happening . . .

First, here's an op-ed from the Editorial Board of the New York Times, talking about the lousy arguments the bail industry is using to keep money bail in place. A couple of gems from the editorial: (1) "Pretty much everyone who spends time examining the American system of cash bail comes away with the same conclusion: It's unjust, expensive, and ineffective, even counterproductive." (2) "But the profit motive can be a powerful bulwark against the truth."

Indeed.

Second, here's a single stop on my website where you can get all the briefs arguing against money bail in the Harris County case. Those in the bail industry trumpeting a brief signed by a few AGs might just note the brief signed by 67 current and former prosecutors and AGs representing 30 states and the District of Columbia. But wait, there's more -- defense attorneys through NACDL, religious leaders, the Cato Institute, NAPSA and PJI, the very conservative Texas Public Policy Foundation and Right on Crime, police and sheriffs, the American Bar Association, the Constitution Accountability Center, and even a single Harris County judge writing that he has proven that he can set bail lawfully without money.  

The absolute worst for the industry, though, is the Conference of Chief Justices, which filed a rare brief in support of the appellee (that's the person who was locked up due to money). The CCJ is made up of every Chief Justice in all 50 states and the American territories. I don't even have to tell you what they said; the fact that they filed should give you a pretty severe ache in your stomach.

By the way, I didn't have enough tabs on my website for the Harris County stuff, so I deleted my "donate now" tab. It may come to a surprise to you if you listen to the bail insurance companies, but I've never received a dime from that website. Not even one penny. In fact, while I'm on the topic, I would estimate that I did about 75-80% of what I did the last year for free.

If you're in the for-profit bail industry, the fact that I do most of this for free -- and that I would do all of it for free if needed -- should freak you out just a bit.

Because I'm not alone.

Why the Bail Industry Will Soon Be Extinct

In a recent in-depth story on bail reform for NBC News, a bondsman recalled for the reporter the first day of "bail reform" in New Jersey. He saw defendant after defendant getting released pretrial without having to pay money, and he said:

"The idea of putting people in jail -- isn't that the f-king point of not committing a crime? You don't do it because there's a penalty. Now there's not a penalty. These smug jackoffs on the street are laughing."

The bail industry was started in 1898 as a way to help get bailable defendants out of jail, something the American system of justice couldn't figure out how to do without it. Over the past 100 years, the idea of "bail as release" has turned, slowly but decidedly in the minds of many in the industry, into bail as the beginning of the penalty (in the form of money) that should be assessed on people only accused of crime.

I see this notion in the quote, above, but I also see it in the statements of the head of PBUS and the writings of the various bail insurance companies in the U.S. It has permeated the entire for-profit bail industry.

Historically speaking, the bail industry has lost it's way. It has strayed from it's fundamental purpose, and that's why it will soon be extinct.

Bail Insurance Companies' "Historic Compromise" In New Mexico

On February 18, 2016, the American Bail Coalition trumpeted its "historic compromise" consisting of new constitutional language for New Mexico's bail provision. Sounded like a big win for the industry, right? But now I read that the bail industry is suing the New Mexico Supreme Court, saying that the new rules have devastated bail agents in that state.

So what happened?

In my mind it's pretty clear. ABC came into New Mexico to throw a wrench into things -- essentially to fight like it always does -- and ended up ticking a lot of people off. It didn't come in to try to figure out what the judges and others wanted. It came in to fight certain language that it thought would affect the for-profit bail companies' bottom line.

On top of that, I'm convinced that ABC didn't know that New Mexico is what I call a "court rules" state, which means that the bail laws there are implemented by court rule and not by statute. That's important, because you can't lobby a Supreme Court. If I were the industry's lobbyist, and if I decided (albeit wrongly) to fight everyone, I certainly would never have let that language make it through. I think ABC figured it would take care of everything later in the legislature. Problem is, that isn't the way it works in New Mexico.

This complete lack of understanding of bail by the bail industry continues today, In Harris County, the federal judge dropped a footnote saying that ABC didn't even know what the word "bail" meant. In the class action in New Mexico, the state bail association is making the uninformed and bogus claim that somehow the right to bail is a right to having a money bond, a claim that goes against the history, the law, and the pretrial research. I know of constitutional claims that might apply to a new preventive detention provision, but apparently the bail industry itself doesn't know what those are.

The commercial bail industry's strategy to fight everything, combined with a complete lack of understanding of the thing that they are fighting about, will mean the end of the industry in New Mexico.

Not the rules.

Bail Agents, You Lost Me

If you look at my blog over time, you’ll see that I started by trying to send messages to people in the bail reform movement concerning what I called the “basics” of bail, like the definitions of terms and phrases, etc.

Later, it sort of morphed into a platform to illuminate all of the manure that the bail insurance companies were spreading. Along the way, I figured I owed it to bail agents everywhere to let them know about the bail insurance antics and to tell those agents that there could be a place for them in bail reform, if they would only distance themselves from those companies. After all, I liked bail agents, and I sort of figured they were all like me – interested in the right to bail, liberty, and freedom. You know, all that stuff in our constitutions.  

Well, nobody’s listening. And so, bail agents, you’ve officially lost any support I might have given you in the past. After seeing a number of posts by PBUS, “The National Voice of the Bail Agent,” I now just assume you all agree with their strategy to fight everything, align themselves with idiots and publicity hounds, and turn the bail reform movement – something your industry could have helped with – into a mean circus. Today I see the insurance companies attacking New Mexico Supreme Court Chief Justice Charles Daniels personally. How, exactly, does that help your cause and not turn judges against you everywhere?

Yesterday, I witnessed a video in which the illustrious leader of PBUS chased down a person with a microphone with someone shouting, “George Soros!” over and over. Based on what these guys are saying (and remember, PBUS is your “voice”), I’m now questioning whether you even care about the right to bail. Listening to PBUS, all you apparently care about is accountability (a punishment term) and making sure you don’t have to hug thugs. Frankly, if that’s true, you shouldn’t be in bail at all. You should all become prison guards. Do you realize how damaging it is for the people leading your opposition – PBUS and ABC – to basically abandon any notion that you care about the right to bail, what the Supreme Court called “the right to freedom before conviction?”   

I was the only person on this side of the movement who thought you had a place in the future of pretrial release and detention, and now I don’t. It’s my fault. I honestly thought bail bondsmen understood their own history and their potential to help America through this generation of reform. I’ve been writing this for years now, but nobody is listening, and so now I don’t think I owe your industry anything.

From now on, you guys get lumped in with the insurance weasels. And I’m personally going to spend all my spare time convincing judges to simply stop setting surety bonds. And if they simply stop setting surety bonds, don’t ever say you weren’t repeatedly warned.   

Bail Reform: Time to Face the Truth?

An insurance company lobbyist recently wrote he was frustrated that a California bail reform bill was moving forward. He listed all the reasons why he thought it shouldn't have passed out of Committee. The problem? The problem is that in a blog that included the word "truth" in it, most of his reasons were false. I'm only going to mention one example, but realize the when the insurance companies do this even once, they lose all credibility with the rest of the system.

This lobbyist said that one reason the bill shouldn't have been voted out was because the Committee had received a letter from people in Jefferson County, Colorado (my county), saying that they tried bail reform and then decided it didn't work. ABC got that letter written mostly to do something that would make me look bad. But that isn't the real problem. The real problem is that everything in the letter was wrong and misleading. So wrong and misleading, in fact, that a judge in Jefferson County -- indeed, the judge tasked with making changes to the system both in Jefferson County and statewide -- wrote a declaration refuting the letter. What did she write? Basically, that the people who wrote the letter  weren't even there when we worked on bail, didn't know what they were talking about, and were flat out wrong and misleading about their conclusions.

So, when the insurance companies passed it out in Maryland, we sent the declaration and Maryland ignored the letter. When they passed it out in Harris County, we sent the declaration, and, well, you know what happened there. So in California, I can only assume that the people weren't fooled by that letter either. I personally sent the declaration to a variety of people in California. And I'm sending it everywhere else.

So the message from this one single thing to the people in California and elsewhere is this: the insurance companies are lying to us. Bang. Credibility shot, and bill moves on because, well, "If they lied to us about this . . .  "

I could go through the rest of the reasons this particular lobbyist listed -- like New Jersey, Cathy Lanier, and people who oppose it, but you'd just see the same pattern. The fact is that the bill is moving forward not because the California reps aren't representing the people. It's moving forward because the bail insurance companies lie like rugs.

Now it could be that this particular bail insurance dude simply didn't realize the truth because ABC lied to him, too. It makes sense because it's the insurance companies that pay ABC to exist. But probably not. I think their strategy is to win at any cost. It's scorched earth, and in the end scorched earth burns everyone, including bail agents.

Do you wonder why, in places like DC, New Jersey, and NM, they leave money and commercial sureties in the law but judges simply stop using them? That's the consequence of all those lies.

Yesterday Was Interesting

Here is an opinion piece in the New York Times from Senator Kamala Harris and Senator Rand Paul about eliminating money bail. Oh yeah, they also introduced a bipartisan bill. 

Rand Paul? Isn't he, like, one of the most conservative people we know? Yep, that's because, at it's core, being conservative means following the constitution, both federal (as in Equal Protection and Due Process), and state (as in those things plus any particular right to bail provision). And bail reform is mostly all about forcing people to follow the state and federal constitutions. 

To you bail agents who fully believe in what you are doing, then you should rejoice that we are slowly forcing government actors to follow the law. To those of you insurance groups, like ABC and PBUS, who want to spin this movement into a political one, then this ought to be a bit confounding. 

Tomorrow Should Be Interesting

Join PBUS?

So some insurance dude is trying to get people to join PBUS. Makes sense. He wouldn't make any money at all if bail agents didn't do all the work for him. That obviously extends to groups like PBUS.

My advice is simple, and completely different. Bail agents, you need to break free from ABC and the insurance-infested PBUS before it's too late. Their strategy -- to fight bail reform -- is not the strategy that keeps you in business.

Ever since I first started looking into it 10 years ago, I realized that bail reform was inevitable. INEVITABLE. Get it? It was always going to happen. And now it's happening, and all the insurance people can do is fight. That won't work. If you've read even a fraction of my posts, if you've ever read any of my papers, you'd know why.

I know virtually everything ABC and PBUS are doing. I'm not kidding -- people tell me everything for some reason. And everything they're doing -- from sniveling around DOJ and filing weird class action lawsuits to hiring a PR firm and fabricating news stories for bogus websites -- simply isn't going to work. People want to change, and they need help with the changes. They don't want a fight.

There's only one thing that I identified as a "genius move" that would forestall bail reform for about 20 years, and the insurance dudes actually did sort of the opposite of that move recently (remember, I said I'd tell people what the "genius move" was if I ever saw it happen). So there's a smart strategy, but the insurance companies do the opposite.

Likewise, in the Harris County opinion, the judge had to tell ABC that it didn't even know what the word "bail" meant. So  there you have it; an incompetent group with the opposite of a smart strategy.

A couple of weeks ago I posted a video of a committee in Philadelphia ripping on an insurance guy, a bail agent, and some dude from New Jersey. At the end, one of the committee members said to the agent something like: "We're changing. Have you done anything at all to try to adapt to that change?" Another good question would have been, "Is there anything you all can do to help us change?"

Those are good questions. The answers, of course, are, "No, because the insurance dudes said I should fight everything."

Join PBUS? No way.

History of Bail

People have been citing to our History of Bail paper that's contained on the PJI website. That's okay, but that document was just designed to give an overview of the history, which was needed back in about 2010.

If you need to know bail's history in a bit more detail for any reason (or for some better reflection concerning historical trends and what they mean), but especially if you're writing a court opinion or brief or something, look at the history sections in my Fundamental's paper, my Money paper, and my Model Bail Laws paper, which are all on my website.

The history of bail shows that "bail" equals release, that "no bail" equals detention, and that if anything interferes with these two notions, bail reform happens. Secured money bonds interfere with both bail as release and no bail as detention. That's why I started telling people in about 2007 that bail reform in America was inevitable.

NCSC Trends in State Courts

Here's a link to the National Center for State Courts' Trends Magazine, the publication put out once a year to educate courts and judges across America about big things affecting the judiciary.

As noted by it's website, "NCSC is the organization courts turn to for authoritative knowledge and information, because its efforts are directed by the Conference of Chief Justices, the Conference of State Court Administrators, and other associations of judicial leaders."  

My article on the inevitability of bail reform focuses on how judges are more involved now than in any previous generation of reform.

You'll note that there are no articles written by bail insurance companies -- rather than to help courts with what's happening, they've decided mostly to fight them.