Saturday, May 20, 2017

Bail Insurance Response to ACLU/Color of Change Report


I just read the bail insurance companies' first response to the ACLU/Color of Change report that shines a big light on those companies. The response is schizophrenic, as usual, declaring that bail insurance companies are white knights by letting everyone out of jail while, at the same time, bemoaning the fact that bail reform is letting everyone out of jail. I mean, which is it, dude? Do you even believe in bail? Are they defendants or criminals? Do you even know what I'm talking about?

This is just further proof that the insurance industry doesn't understand criminal justice, bail, or constitutional law.

But this particular comment in the response caught my eye: "I actually have to get back to my real job, which isn't funded by taxpayers, but rather by customers who pay us money for providing an important service to the community. Yes, that is called commerce. It occurs when someone creates value through a service or product that people are willing to pay for."

Man, you'd think this guy was selling sandwiches. Commerce? Do you think bail is like other forms of commerce, where manufacturers create a product that people actually want to buy, and with market forces of supply and demand determining the viability of the product? I don't think so, which is why the bail insurance companies are hell bent on forcing jurisdictions to keep money bail so that they can force the demand.

If bail was like commerce, it would be more like a guy selling umbrellas on the street. If it never rained, he'd go out of the business of selling umbrellas and find something different to sell. But if that guy acted like the bail insurance companies, he'd go to state legislatures and get them to make it a law to force people to buy umbrellas even if it never rained. Two on Tuesdays. That's hardly creating a product or service people are willing to pay for. today, all over America, people are voluntarily becoming unwilling to use the bail insurance product, but the bail insurance companies want to force it on them anyway. That's the opposite of commerce.

So his job isn't what I'd call a real job, unless forcing other people (including bail agents) to keep you fat and happy is your idea of real, or a job. You realize, don't you, that in that ACLU/Color of Change report the insurance companies were bragging that they never paid out on any claims? What kind of a service are you providing when you force everyone else to provide the service for you?

Okay, so bail insurance companies don't understand bail, they don't understand the constitution, and they don't understand basic fundamentals of a market economy. And you bail agents are following their lead for what reason again?

Friday, May 12, 2017

ACLU/Color of Change Report on Bail Insurance Companies

We interrupt this blog that rips on bail insurance companies to provide this link to a new report ripping on bail insurance companies. It isn't hard to do -- once you can get past the cloak of secrecy that's a hallmark of all nasty businesses. But this report is great, and the beginning of the end of bail insurance activity in criminal justice.

Some of the highlights -- eliminate the bail industry, and until then investigate and better regulate the companies behind it. And, get this, a plea for some of the larger corporations to act ethically by cutting all ties to the bail industry.

As usual, it's the insurance companies that are causing all the chaos. Bail agents, you gotta cut loose!

Happy reading!


ABC -- We'll Take Harris County Case "All the Way to the Supreme Court"

Bail agents, you better hope they don't, because I really hope they do.

This batch of lawyers failed miserably in the district court. Do you think they'll somehow get any better between now and an appeal, given that they don't really understand bail?

If they take the wrong case to the Supreme Court and lose, it's the end of money bail in America in one single case.

Don't say I didn't warn you.

Who's running this strategy of yours?

Thursday, May 11, 2017

Bail Insurance Company “Experts” in Harris County


In my last blog, I showed how the bail insurance companies didn’t even know what the word “bail” meant. That’s a big deal – the amicus in which they screwed up in Houston was written for the case in Georgia by some big shot appellate lawyer. They paid him big money – so they got a big mistake.

Now let’s see how the bail insurance companies fared with their “expert” witnesses in Harris County. They had two. The first is pretty easy to dismiss. The court found that even though he might have known a bit about the history of the Harris County Court back when he worked there, he’d been retired for six years and so his testimony was given “substantially less weight” than contradictory testimony.

The second “expert” really requires a bit of an explanation, but I’ll save that explanation just in case the bail insurance dudes decide (unwisely) to use him again. Suffice it to say that this second guy is a bail insurance lackey (he’s been one since 2010) apparently with an incredible bias toward making sure those companies look good at any cost. But don’t trust me – just read what the court said about him. As you do, remember that when we legal types say something “isn’t credible,” it means we don’t believe it.

“His method for arriving at that number is not clear . . . [therefore, the other expert’s] calculation . . . is the more reliable figure.”

“[His] criticism is not credible . . . [and is] particularly weak given his own analytical shortcomings in studying Harris County’s data.”

“The defendants dispute these numbers, but their expert . . . provided no alternative figures.”

“The defendant’s expert . . . attempted a different method of counting. His study is critically flawed in at least two ways.”

“An even more basic flaw in [his] study was his exclusion of all misdemeanor defendants who had ‘moderate’ or ‘high’ risk scores from the population he considered. In sum, [he] excluded indigent defendants from his survey to conclude that, of the misdemeanor defendants surveyed, none was detained because of indigence. [This] conclusion is not entitled to any weight.”

“These critical flaws undermine his credibility and diminishes the court’s confidence in the reliability of the opinions he expressed, whether deriving from his own research or criticizing the analytic methods and conclusions of others.”

Ouch.

“[His] attempt to salvage his report is not successful.”  

“[His] decision to disaggregate his findings by gender and provide no overall failure rates is puzzling, to say the least. His decision to disaggregate his findings had the effect of inflating the slight difference in failure rates . . . and made it appear greater than the overall rate of failure, which [he] did not provide.”

“His [Dallas Study] is entitled to substantially less weight than the published, peer-reviewed articles in the record.”

Wow. Enough already. Do you get it? He doesn’t know what he’s talking about when he talks about other research, and he doesn’t know what he’s talking about when he’s talking about his own research. And that stuff about inflating the rates? That’s his incredible bias to try to find some conclusion that supports the insurance companies.

I can’t blame this so-called expert for falling under the spell of the bail insurance companies. They offer people boatloads of money and fame – a weird kind of bail fame that comes from having your work immediately thrust into the national spotlight. Other people fall for that, too.  The problem is that now that he’s been ridiculed in court, the bail insurance companies will just go hunt for some other patsy willing to say anything for all that money and bail fame.  

Once again, bail agents, you need to unshackle yourselves from the bail insurance companies. Yeah, they got the county to appeal, but that’s just to buy time to settle. The appeal on this single motion (this is not the trial – it’s just an incredibly huge motion hearing before the trial) will cost a ton more money in just legal fees, and then, even if they win, they’ll just end up in trial with the same judge, the same evidence, and the same expert.

You bail agents in America have to consider removing that word “agent” from your title. You’ve got to find someone who understands how the insurance companies’ protracted “fight everything” strategy won’t work – especially when what they did in Harris County is the best they can do. When you find that person, tell him or her that you want to remain in business, but that you know that might mean changing your business practices. The insurance companies are on their way out in American bail. Your choice is between letting them go down on their own, or letting them take you down with them. 


Thursday, May 4, 2017

ABC Doesn't Even Know What Bail Is

So I'm perusing the Harris County memorandum and opinion in the federal case, and I see a footnote in which the court says, "Texas's scheme points up a flaw in the amicus brief filed by the American Bail Coalition [and others]. The brief consistently and ahistorically assumes that references to 'bail' always mean a secured money bail with a monetary payment required up front as a condition of release." That's "a-historically," as in, going against or ignorant of history.

Thats 's a pretty big flaw, because it means the bail insurance companies -- the group developing the strategy to keep money bail in America -- doesn't even know what bail is. This flaw is the basis for a lot of the bail insurance companies' flawed legal claims, by the way, and it's the same flaw advanced by the big time law firm they've hired to litigate these cases.

I've written about this many times before, and they've got no excuse because everything the court said about bail -- what it is and what it isn't -- has been spelled out in my papers. But they refuse to read my papers. I'll let you decide whether that's wise. As the federal court in Harris County said, bail is a mechanism of release. As my papers say, bail is a process of release. We have a thing called bail to release people, just as we have a thing called "no bail" to provide a way to detain them. It's really pretty simple.

Bail agents, the insurance companies are not only losing this thing for you, they're losing it without even bothering to figure out what they're even talking about.

One day, as you're turning off the lights one final time, you'll probably think to yourself, "I suppose before we just followed along with the insurance companies' lost cause, we should've  at least checked to see if they could correctly define the word bail."

Just in case, in my next blog I'll define the words "American" and "Coalition."

Tuesday, May 2, 2017

Bail Reform and "Accountability"

This blog is called "Bail Basics" for a reason. Every so often, I have to get back to basics and explain some really foundational thing, like the definition of certain terms and phrases.


Mostly I do it because the bail insurance companies mislead people by using the wrong words, and that's the case here.


I'll be brief. Accountability is a term associated with punishment, not bail.
Being accountable is being responsible for your actions. In criminal justice, that happens after we prove those actions. In bail, we say we want "assurances," as in "reasonable assurance" of either court appearance or public safety. That's because we haven't proven any actions yet. That's what the law says. The law surrounding bail and no bail simply doesn't use the term accountability. 


And when we talk about assurances, we don't mean complete assurances, by the way. We mean "reasonable assurances." That's because bail always involves some risk. We take risks in bail and in the substantive criminal law because we're Americans and we're interested in limited government, liberty, and the moral deterrence of the rule of law. That's what the law says, too. 


So, bail insurance dudes, if you want money bail, please don't say you want it because you want defendants to be "accountable." If you do, it means you don't understand fundamental precepts of American law. 


Monday, May 1, 2017

Money Bail Loses in Harris County, Texas



Those of us out changing bail across America over the weekend already saw this, but if you're just waking up, the federal judge in Harris County ruled that "Harris County's policy and practice violates the Equal Protection and Due Process Clauses of the United States Constitution." What policy and practice is that? It's the traditional money bail system used in jurisdictions all over the country.

The memorandum and opinion is long, but you can read it here.

I'll have more in the future on this, only because it was mostly the bail insurance companies trying to run this litigation. They provided the experts (which were trashed in the opinion), and they supplied all the faulty legal arguments. In fact, you can see that the County was out of its depth through what various county officials said on the record. But this loss isn't a loss for Harris County -- it'll survive and eventually make appropriate changes. But the bail insurance companies are going to have to go back to the old drawing board.

Additionally, and to their credit, many criminal justice leaders in Harris County agreed even before the hearing that the system there was unfair and unconstitutional. That's happening all over the U.S.

Let the spin begin. The bail insurance companies will now be trying to convince the county to appeal. It shouldn't, as it will lead to a tremendous amount of money spent on a futile cause. They'll also try to convince bail agents that, in the end, they'll win. So expect an appeal for more of your money as well.

I've worked in law for a dang long time, and I've worked for federal courts. I've never seen anyone put more time and money into a motions hearing than the bail insurance companies did in this one. But, you see, you can't lobby federal judges. You can't change the constitution. And, in the end, you can't hold on to an inherently unfair money bail system.


Monday, April 24, 2017

The Anecdotes Fall Apart Quicky

The bail insurance companies think they're fooling people with anecdotal stories about "failures" surrounding bail reform in New Jersey. They're not. Just check out this opinion piece posted in that state yesterday.

In fact, they don't even realize that past iterations of bail insurance company lobbyists already tried the anecdotal route and failed.

When I first got started in bail reform, and when all we had fighting us were a few unripened district attorneys in short pants and, of course, national bail insurance company lobbyists, they only used anecdotes. That was their main strategy, and it worked horribly. Look at where we are now.

As the opinion piece says, "What we don't want . . . is a political mad dash to change this reform, based on anecdotes."

I know it's tempting to use anecdotes. It's sort of human nature. But realize this. Even if you do, the laws, policies, and practices that you create based on anecdotes simply won't hold up legally. If I'm an appellate court, and I'm trying to gauge a legislature's justification for a new bail law, it's not going to fly for that legislature to say, "Well, we had this one particular guy who sawed off his GPS and . . . "

So, the strategy of the bail insurance companies appears to be "fight everything," even if it kills their own bail agents, and "use anecdotal scary stories to try to fool people while you fight," even if that didn't work ten years before and even if it'll lead to laws being struck in the future.

I don't know, bail agents, seems like these guys haven't learned anything in ten years. Maybe it's time for a change.

Friday, April 21, 2017

“Colorado Model” Isn’t Working So Well?


Man, those bail insurance companies will lie about anything, and especially about Colorado. It’s a long story, but they really hate Colorado for three big reasons, and it’s so juvenile that it would remind you of grade school recess if I explained it to you.

Nevertheless, in a recent post, the insurance companies cite to a story about Boulder County (Colorado) District Attorney Stan Garnett’s concerns over public safety in bond setting. They post the article, and then they say, “Apparently, the so-called ‘Colorado Model’ isn’t working so well.”

Once again, though, the insurance companies are misleading people or likely failed to actually read the story they posted. If they’d have read it, they’d have seen that the DA was having a problem with judges continually letting so-called high risk people out on bonds with money amounts that the DA thought were too low.

That’s not the “Colorado Model” – that’s the “American Money Bail Model.”

The DA cited to a case involving a guy named Lobato as an example”

“Lobato is a good example of a guy who comes in, gets a bond of $10,000, which he is immediately able to make, then turns around and allegedly commits another serious offense and then gets a bond of only $15,000 which [he] is also able to immediately make,” Garnett said. “In hindsight, the (first bond) was not set high enough to protect the public.”

All the other examples he cited were the same. People post money, get out, commit new crimes, and then post more money.

That’s the essence of the money bail system in general, and the commercial surety system in particular, both of which allow high risk people to pay to get out of jail, commit new crimes, and then pay to get out again. And, as usual, nobody ever forfeits the money for these new crimes. That particular law – the law that says you can’t forfeit money for public safety – is courtesy of your bail insurance lobbyists working over the past 50 years, and it’s basically the same in every state in America.

Like I’ve said before, the only amount of money that will keep anyone safe is an amount that detains, and that’s unlawful when set to detain on purpose. So, for now in Colorado, we’re stuck with a system – based on the money bail and commercial surety models – that allows high risk people to buy their way out of jail.

So, let’s review. What model was the judge using in the Lobato case? The money bail model. What’s not working so well? The money bail model. What do the insurance companies want us to continue to use? The money bail model.

Again, we here in Colorado know all that, so the post must be designed only to make bail agents think the bail insurance companies are making progress. They aren't. 

  

Tuesday, April 18, 2017

"Model" Bail Laws

After far too long, I’m finally posting the paper I’ve been working on dealing with pretrial release and detention. You can find it here.

In this generation of bail reform, jurisdictions are changing – both voluntarily and by force – their release and detention laws, policies, and practices. This paper answers the question, “If we change, to what do we change?”  Knowing this answer might help places that are still unsure of what a lawful, purposeful, in-or-out pretrial release and detention process should look like, and the steps required to create and to legally justify it.  

To me, the hard part about “model” bail laws isn’t necessarily what we should do to make sure we get good outcomes after a person is determined to be releasable. The hard part is re-drawing that initial line based on whom we want to release and whom we want to detain, which, in most cases means re-articulating both a narrow charge-based detention eligibility net and more refined further limiting process following fundamental American notions of fairness and liberty, all while infusing this generation of risk research into the mix. I’ve noticed a lot of people aiming at this target lately, and so I hope this helps with the overall conversation.

The whole issue is a bit more complicated than simply replacing charge with risk. In the end, you’ll see that the two have to work together. The paper is long because of that complexity, but you can skip to the end, where I lay out various templates of a release/detain dichotomy for a model based on the history, the law, the research, and the national standards. If you then want to know my justification for that model, you can read the other 190 pages. Jurisdictions certainly don’t have to use my model, but my hope is that in the future, jurisdictions will nonetheless see my justification, and then provide the same or similar justification for any changes to their laws.

Many people are asking where actuarial pretrial risk assessment instruments fit into all of this. The answer is that they are fabulous at helping with 99% of everything we are trying to achieve with pretrial release and detention. Nevertheless, my analysis concludes that we cannot use them solely to determine detention or detention eligibility. That seems pretty obvious when you say it out loud, but laying down a proper justification made the issue a bit complicated.

I’m sorry for the length and the fact that there is no proper “executive summary,” but, frankly, this paper isn’t really for mass consumption. Nevertheless, people who are at that point where they are putting pen to paper to craft the words of their constitutions, statutes, and court rules, will definitely want to read it. There are other discussions, as well, that might help those of you trying to think through the whole charge versus risk question. And, of course, if you’re just really obsessed with bail and no bail – like I am – then you can pour through it and call me with any questions.


I have a hunch about bail reform in America. My hunch is that the first two generations of bail reform didn’t work for three reasons: (1) judges weren’t involved; (2) we worked mostly in the federal system, and didn’t take the time to walk states through the same process; and (3) we never really had all the answers. In this generation, judges are involved, and we are working with the states. And with this paper, I personally believe that we now have some of the final answers to give to states trying to create a more purposeful and possibly moneyless system. 

And you thought all I did was complain about the insurance companies! 

Saturday, April 15, 2017

Modifications Sought for NJ Bail Reform?

So the insurance companies are now displaying a letter from the NJ Attorney General saying that he wants modifications in bail for persons arrested on gun and eluding charges. 


The industry posts the story, and then adds commentary saying "The wheels are starting to come off of NJ bail reform," and "The failures of NJ bail reform are well documented."


That's some pretty hyperbolic commentary, given that the NJ AG didn't ask for the one thing the insurance companies want in all cases -- the re-introduction of money.


Those insurance dudes don't get it. NJ has created a super wide detention eligibility net, and could quite easily detain persons showing any kind of heightened risk to public safety. Adding money to their bonds -- the only solution posed by the insurance companies -- won't do a thing for danger, and everyone in NJ knows that. Heck, even the insurance dudes know that. That's why most of their posts are mixed messages, with statements warning about all those dangerous defendants while simultaneously talking about the presumption of innocence. Right now, you have the head of ABC trying to start a national bail fund for poor people while the head of PBUS continues to say, "people aren't in jail because they're poor."


Nobody except the insurance companies is saying to add money back into the bail process to make people safe. I've spent the last 10 years showing how money doesn't make anyone safe, and the bail industry has spent the last 10 years making sure they don't have any responsibility for public safety. Some of our worst failures over the years have been when super high risk people bail out of jail on a surety bond and commit heinous crimes. Just a few weeks ago, a guy in Colorado bailed out on a surety bond and was promptly arrested for a double homicide. Nobody assessed him, nobody supervised him, and he didn't even have any other conditions besides the money, which nobody even forfeited. 


If I thought that the people who run these systems paid any attention to the insurance companies' various Facebook accounts, I might be worried that they'd be duped in some way. But everybody I know in criminal justice knows the score. The only reason these stories -- and their crazy commentary -- get posted is to convince bail agents that somehow they're winning the war so that they'll keep sending money in to continue the fight. 


So go ahead. Keep sending it in. You're paying for the salaries of people who are systematically killing your businesses.




Thursday, April 6, 2017

Bail Insurance Companies Spread False and Misleading Letter


The website “U.S. Bail Reform News,” a pretty weak attempt by the insurance companies to provide slanted information on bail reform, recently put up a post about a Colorado district attorney warning Maryland about bail reform. What they left out tells you something about whether you can ever rely on that site for anything but bogus information.

The insurance companies’ ties to that particular DA’s office go back a long time. I was once in the room when five or six DA’s from that office, along with some bail insurance dudes, were trying to convince our county commissioners to de-fund our pretrial services unit. So back then, as the story goes, the DA in charge got pretty hammered by the rest of the system. He liked bail the way it was – money, money, all the time – and the rest of the system voted him down and made some changes. He was so upset – and I mean, like, upset the way a six-year-old gets – that he never forgot it. Ever since then, that particular DA’s office has done everything it can to try to “go back” to the good old days with money, bail schedules, and DA’s deciding on the amounts, and to “get back” at the people who made the changes. If I listed all the dumb things that office did when it came to getting back at everybody over the bail project, you’d want to barf. Or send them to Washington.

And all that childish pride, that incredibly irrational opposition against everything that is bail reform (including opposition to many things that would help with public safety – the DA actually once said he “didn’t believe in research” or "didn't care about the research," which was something monumentally dumb for a lawyer to say) was just the thing to get the insurance companies excited. So when Maryland came along, those companies got the current DA to write a letter with a current county commissioner and the current sheriff, saying that bail reform failed. I won’t bore you with the details, but there were only a couple things wrong with the letter: (1) it was factually incorrect; and (2) the people who signed it weren’t even around and in any position to comment on it one way or another. The two are related, I suppose. Since they weren’t around when we did stuff, they didn’t know that what they said about it was wrong. The commissioner actually testified before the Maryland legislature about a “10 County Pilot Project” in Colorado. Well, guess what? There was no such thing. It simply never happened. That’s either dumb or . . . no, it’s probably just dumb.

Anyway, a district court judge in that same jurisdiction drafted a declaration about the letter saying: (1) they were wrong; and (2) they weren’t even there. We gave that declaration to Maryland and to the people in Texas, and we continue to give it out to anyone who trots out the dumb letter.

As a side note, it may interest you to know that the bail insurance companies once requested the County to submit to them some sort of document about the bail project. You'll never see that response, though, because the County itself said the bail project was a success. Obviously, that wasn't the answer they wanted. So they went with the letter.  

This whole thing follows a trend I have written about before. The insurance companies will pay anyone to write or do anything to help them, and they really don’t care if what comes out is even true. Then they tell all the bail agents around the country to look at it like it’s some sort of victory, but they never mention the fallout from providing false information to various officials and what happens whenever I correct the record.

All this fighting by the insurance companies – all this desperate use of false information – is why judges are going to simply stop using commercial surety bonds. That’s the fallout. It won’t matter whether you leave money in or take it out. After all, look at New Jersey. All that fighting led to money being left in the mix, but judges simply aren’t using it. This is what’s going to happen around America. And it’s due to the insurance companies’ inability to tell the truth about even stupid things.

“We have a letter!”    


Big deal. We have the truth. 

Wednesday, March 22, 2017

Bail Insurance "Accountability"

Here's an example of bail insurance "accountability" in El Paso County, Colorado.

Defendant: Gustavo Marquez

Case #1 -- 17CR1150, felony assault, kidnapping, child abuse. No risk assessment, no supervision, released on $5,000 surety bond with no further conditions.

Case #2 -- 17CR1586, while on release for case # 1, arrested for double homicide (victims = 15-year-old-boy and 16-year-old girl). Now being held without bail.

The kicker? Nobody forfeited the $5000.




Sunday, March 12, 2017

My No Spin Zone

I have no idea why bail insurance people (including the insurance infested PBUS) can't report anything without considerable spin. Here's the truth about a couple of things they've reported on lately.

First, the 11th Circuit remand was not a "huge win" or a "major blow" for anyone. It got sent back kind of on a technicality (an important technicality, sure, but still a technicality). I used to write opinions for a circuit court of appeals, and this is not the kind of opinion that means much of anything. The district court judge already thought Walker was likely to win on the merits, and if nothing changes, he may well find the very same thing again. Another injunction, another appeal. It's a royal pain in the rear to have to do stuff over again, if it comes to that, but it's not a huge win for anyone.

The absolute truth (which people on "my side" don't even like to hear) is that preliminary injunctions are really rare, and super hard to get. I never expected one, especially on a tricky topic like bail. In fact, over time, I think we'll see both wins and losses in the district courts. I predict, however, that the "no money bail" push will ultimately be embraced by the federal courts. It's just going to take a while. If you do see a bunch of preliminary injunctions, though, that's really bad news for money bail. It's why the insurance folks are spending so much money down in Texas.

Second, somebody apparently watched the Pi-Con pretrial conference, made fun of it, and said it meant that everything was going to swing back the insurance company's way. I was there, and what I saw actually gave me quite a shock. We were going to watch a debate about money bail from a more conservative guy (Mark Levin from Right on Crime) versus a more liberal guy (Rep. Ted Lieu), and I expected disagreement. But there wasn't any. Both predicted the end of money bail because it made no sense whether you were conservative or liberal. Mark mentioned possibly using defendant collateral, but not through families or through a commercial surety system.

The absolute truth is that the disagreement between conservatives and liberals will come not from the elimination of money, but from where to draw the line between release and detention in a moneyless world. Nobody has gotten that far yet, but they soon will.

I also talked to more than a few judges, and they said essentially what I heard at a Conference of Chief Justice's conference not long ago. The judges said, "We just aren't going to use commercial sureties anymore." You can fight all you want, but if you leave money in the system and judges simply don't use it, it's all over. You can try to force judges to set a surety bond -- I've seen many attempts of that in the states, some even successful. But I've never seen anyone force a particular amount, and that's where all the forcing fails.

There's still time for bail agents to find a place in this new world of pretrial release and detention, but you won't get there listening to the insurance companies.

Friday, March 3, 2017

Bail Agents Leading Bail Reform?


How does the one group of people who's neck deep in bail (i.e., the bail agents) end up completely outside of bail reform? That’s the question I’ve been asking myself lately. 

The answer isn’t all that complicated. It’s because the insurance companies don’t know anything about you, and they didn’t consult you when they decided on a strategy to fight everything in bail reform.

 I’m not kidding when I say they don’t know you. The other day the head of PBUS said you all had been around for 200 years. That’s wrong, and it’s proof that they don’t know your history. Commercial sureties have been around for 120 years, but that’s not a bad thing. The fact is, when commercial bail bonding came about in America’s history, bail bondsmen were the white knights – riding in to fix a system that nobody else knew how to fix. Your predecessors helped America figure out how to get people out of jail who shouldn’t have been in jail to begin with. It was a huge thing, and something you all should be proud of. 

 The point, though, is that the insurance companies don’t even know any of this, and yet they try to speak on your behalf. Now they simultaneously say states should maintain a right to bail, but that everyone who is arrested is a violent criminal and should be locked up. It’s the most contradictory thing I think I’ve ever heard. The other day someone showed me the hashtag, “savebailkeepeminjail.” Only an insurance goofball could dream that up.    

Then there’s that “fight everything” strategy. They probably don’t know this either, but that strategy actually got going in 1965, when Attorney General Kennedy held the first National Conference on Bail and Criminal Justice. There were two people representing the industry at that Conference, and guess what? Yep, they were both insurance guys. The first guy basically said, good luck trying to change anything. He gave no help whatsoever in trying to figure out the kinds of things the participants were questioning. Instead, he just kept saying that the system was great the way it was. In the end, he said: “We do say, however, that the bail bond business is something that will go on forever. It cannot be abolished.” So there.


 The second guy actually said a few things that current bail insurance dudes could learn from. First he talked about the presumption of innocence (you may recall that today’s insurance people used to argue that it didn’t exist at bail). Then he talked about surety bonds being a more equitable than England’s system, which tended to refuse bail altogether in much higher numbers. But in the end, he basically said that trying to change anything about his particular bail insurance industry was socialism, and that it would lead to the socialization of the entire insurance industry and ultimately all industry. Now, I wouldn’t call that figuring out solutions, would you? 


You bail agents could be the people who help everyone figure out what to do next, and yet you have chosen to give your power to insurance people, who don’t understand you, your history, or your potential place in the future of American pretrial release and detention.   


There's no place in that future for insurance companies. They know that, which is why they fight everything. Once you know it, you’ll cut them loose and maybe help everyone with a solution. Think about it – bail agents leading bail reform. It actually makes sense. 

Wednesday, March 1, 2017

PBUS Head: “We don’t want to kill our clients . . .”

“We don’t want to kill our clients . . . it sort of kills [our] repeat business.” Yep, that’s what the PBUS head said in an interview the other day.

Okay, I know that was probably meant to be funny, but I listened to the rest of the interview and I heard a lot of crazy-ass stuff – you know, stuff about George Soros being behind some secret cabal that means the end to money bail in America.

Look, I know people like to have an enemy. And I know it’s intriguing to talk about some dark, nefarious enemy who nobody even knows about, but who is really some grand puppeteer behind the scenes screwing things up for everyone. But in this case, it just isn’t so. I’m right here. George Soros is somewhere out there. I do bail reform everywhere. I’m not sure what he does anywhere. We haven’t talked, and I haven’t even seen one word mentioned about him except from groups like PBUS.

Bail agents, if this is the strategy that you told PBUS and ABC to pursue, then God bless you. But even if you did, I hope you realize how nuts it all sounds out loud.  


Friday, February 24, 2017

Bail Insurance Companies Care Little About Bail


Lately I’ve been spending a lot of effort on some big-time bail cases – one recent one even involved filing a brief in the United States Supreme Court. But can you guess who’s not involved in any of these cases? That’s right, the bail insurance companies.


 Even though these cases deal with pretrial release (bail) and detention (no bail) – how to do it, what makes it constitutional, etc., – the bail insurance companies either don’t know about them or they don’t care because technically the cases don’t involve directly taking away their money.


 That’s a mistake, though, because a bunch of us know that what the Supreme Court says about detention for, say, immigration cases, will likely foreshadow a future ruling on money bail. 


The insurance companies are winging it. While they’re spending all their time and effort on motions hearings, some really big stuff is happening that will affect their industry more than they think.
 

If you’re in the bail industry, but you don’t care enough about bail apparently even to know about these other cases, what in the world are you doing?

Wednesday, February 22, 2017

PBUS in Atlanta!

The insurance-infested PBUS is sending their fearless leader to stand bravely on the courthouse steps and then watch oral argument in the big 11th Circuit case in Georgia!

Time for a gut check:

1. Standing on the courthouse steps and watching oral argument at a federal court of appeals is absolutely ineffectual. I know, because I used to work in a federal court of appeals writing opinions. The insurance companies know it's dumb, but they're telling you bail agents they're going there so you'll think they're actually doing something. This isn't like some local county court, where you can sit there, frown, take notes, and then oppose the judge at the next election.

2. You'll win or lose in the federal courts based on the merits. Not based on politics, or public opinion, or some lame amicus brief. By the way, I filed my own amicus in that case ripping apart the Clement brief. Turns out, like the insurance companies that hired him, he doesn't know much about bail. And, the truth is that a big, difficult issue like pretrial release and detention -- pitting the 8th Amendment against the 14th Amendment -- will likely have a series of decisions that go both ways before we get the whole thing sorted out.

3. Someone has to confront the brainiacs working on the overall insurance strategy that simultaneously fighting for "bail" (you know, conditional release prior to trial for people accused of crimes -- one of the many big things we enjoy as Americans) and against defendants by calling them criminals and acting like nobody should be released pretrial is just boneheaded. I know you agents understand the difference between a defendant and a "criminal," so you just need to explain it to the insurance people. Tell them that if they don't like people, they can get involved in sentencing. The insurance companies' strategy makes you all look like you don't even understand your own profession. I know you do.


Saturday, February 11, 2017

Dear Bail Agents at PBUS:

This week you gather to talk about pretrial release and detention, something your profession has cared about since 1898, and the ancestors to your profession have cared about since 400 A.D. But you are at a crossroads, and I’m writing to give you a warning.


 Those of you who’ve read my blog know that I like bail agents. As I’ve said many times before, the bail agents I know are the salt of the earth, and likely care about the right to bail more than a lot of judges I have known. In my own little world, I have made people really anxious whenever I’ve told a state that there is nothing inherently wrong with private pretrial, that bail agents might have a place in the world of pretrial justice if they simply change their model, and that I probably wouldn’t even mind using money if someone could figure out a way to use it so that it works and is fair.


 But if you’ve read my blog, you also know that I’m not fond of the bail insurance companies or the groups erected to protect them, like ABC and the insurance-plagued PBUS. I have seen them trample not only ordinary people who get in their way, but also bail agents themselves when they stand between those companies and their money. Mostly, though, they’re a problem because they fight literally every effort at bail reform, and thus are a hindrance to pretrial justice. I have repeatedly written that their strategy to fight everything will only bring your livelihoods to a swift demise, and yet they believe that strategy is the only one that has any hope of assuring that they remain in business. That strategy is killing you, but they show no signs of changing it.


 New Jersey is a good example. When reform began, the insurance companies fought hard. No money? Never! Risk assessment instruments? They’re discriminatory and flawed (by the way, insurance companies arguing that actuarial risk tools are flawed is kind of funny, given they use them for literally every other kind of insurance)! Pretrial services supervision? Public welfare! Are there any poor people in jail? Of course not! Do any dangerous rich people get out who shouldn’t? Never! Use D.C. as a model? No, not for anything! What about Kentucky? They’re worse! 


 But what did all that get them in New Jersey? By all accounts, the potential demise of commercial bail bonding in a state that left money and bail agents intact. So now the insurance companies have a PR firm and are manufacturing stories about success, because most everything is going south. Just stop and think for one second – can you see where fighting literally everything a state is proposing can lead to that state thinking that the insurance companies simply aren’t being reasonable?  And the states are learning pretty fast that even if they listen to the insurance companies, those companies sill fight them later on. People are simply sick of the message the insurance lobbyists are giving. That’s why even though the New Jersey judges can still use money, they just don’t want to. That’s the insurance companies’ doing.  


 You’re going to hear a lot of upbeat messages this week about the bail wars. They’ll tell you how they asked to file a brief in Harris County, but they won’t mention that it’s recycled from the 11th Circuit and is unlikely to even be read by a district court judge except for comic relief. They’ll tell you they argued in Maryland, but they won’t tell you they lost the argument (well, they’ll say they added secret, last minute compromise language that will save the industry, but you can read the gist of it here). They’ll try to convince you that the new administration and Congress will bring an end to the reform, but they won’t tell you we have bipartisan support from groups as diverse as the Kochs and the ACLU. They’ll tell you that PBUS sent a letter – just yesterday – to the Ohio Sentencing Commission, and then I suppose it will dawn on them that the same day they trashed me by name on their website. Do you think the people from Ohio will look at one and not the other? I know those people, and they know me. Heck, I was on the email list that received the PBUS letter. So, overall, do you think that was a good strategy – “Please help us, but look at what we do to people who don’t?” Ask your PR firm. People remember these things and they all sink in. You’re going to hear a lot of upbeat things, but only because you keep them in business.
 


Don’t be fooled, bail agents. They’re using your money to fight everything that comes their way and hiring a PR firm to make you think they’re winning. They have to, because they’re not winning, and the alternative – to help bail agents survive this generation of bail reform – is not part of their strategy. But the reality is that there’s simply no place in the future of American pretrial release and detention for bail insurance companies. Those big numbers are coming down, and if you don’t have big numbers, you don’t need insurance. Their demise was bound to be messy, but you don’t have to let them drag you down.   


You all need to hire someone really smart (heck, hire the insurance lobbyist – he’s really smart), and tell him or her to think outside the box, ditch the “fight everything” strategy, and see if he or she can somehow convince all the other states to forget about all the previous nastiness and to take you seriously as a part of the system. The insurance companies will never do that for you. ABC and PBUS will never do that for you. Here’s the warning: you need to break loose, or you’ll be out of business. You know what I’m talking about.  

Thursday, February 9, 2017

A Big Case in Arizona

As much fun as I've been having with these other goofballs, I have to interrupt everything to say that today the Arizona Supreme Court ruled that one of the state's categorical "no bail" provisions was unlawful under the United States Constitution. It did so by holding up the Arizona provision to the opinion in United States v. Salerno. You can read it here.

Two things. First, if more state courts (or federal courts) start holding up state detention provisions to Salerno, we're going to see a lot of those provisions declared unconstitutional.

Second, this is as important, if not more important than any other thing going on in this generation of bail reform. Yet, for some reason, the bail insurance companies don't get involved in this aspect of bail, and I don't think they even know about the cases or the issues.

As we speak, the bail insurance companies are filing an amicus brief in a federal district court in Texas because they think they're going to start losing money in Harris County. I think that if those companies really cared about bail, they'd at least consider filing a brief like that in a case like the one in Arizona, where the issue goes to the heart of pretrial release and detention in America.

Monday, February 6, 2017

Bail Insurance Companies Getting Into Fake News?


Man, I never thought I’d ever use such a stupid term as “fake news,” and my dad knew Nixon.

 But recently I’ve seen the bail insurance company posts with all these stories about how horrible everything is in New Jersey, and I noticed that they were all coming from one source – Shore News Network. I mean, it was literally the only outfit saying these things, and the things it was saying were pretty much the opposite of what I was hearing both from people high up and on the ground in New Jersey. 

So I checked the source. On its face, Shore News Network looks a bit like a legitimate news organization. But then I realized that it’s really just one blogger and a couple of staffers. This is how the Shore News Network describes itself: 

The Shore News Network is a news collective that ties global news providers with fair and balanced local community news at the Jersey Shore. In operation since 2008, the Shore News Network is an open-public news source that allows news content creators at the Jersey Shore a place to safely publish their news in a manner that is free of editorial distortion. 

Okay, I’ve been around awhile, and so I know that when someone talks about being “fair and balanced,” they’re probably feeling defensive. It’s like when you have to constantly tell people you’re cool.

 And when someone talks about “open-public news” with stuff from “news content creators,” I know exactly what’s going on. People provide stuff that’s not “news” (even though they think it should be), and it ends up kind of looking like “news” because the blog calls itself a “news” source and uses the word “news” in its name.

 In this article, the author describes Source News Network as a “GOP aligned political commentary blog.” So that’s all it is. A blog. Like this one. Well, not completely like this one because I don’t claim to be news and I don’t take any money.

 This all reminds me of when the bail insurance companies practically ran ALEC, the nefarious black-bag group with members like the tobacco companies hell bent on teaching kids how to smoke. Hey, I’m not kidding about the smoking thing – just read this.

 The bail insurance companies were super deep into ALEC, and before we outed them, they used the ALEC machinery to boost money bail whenever and however they could. I remember one time a bail insurance dude said in a speech that he had drafted an article questioning the efficacy of pretrial release agencies, but “got [ALEC] to print it as an ALEC piece because we didn’t want it to come from a bail bonding organization – we wanted it to look like it came from some neutral, political source.” Not too smart to brag about it in a speech, but pretty slippery stuff, huh?

 Oh, and hey, bail agents, the fact that the insurance companies stick the  Shore News “news” on their websites isn’t just to sway public opinion in New Jersey. It’s also designed to make you think that somehow the bail reform train is falling off the tracks so you’ll keep sending them all that money.

 You get it, right?  It’s . . . supposed . . . to . . . give . . . you . . . hope . . . so . . . you . . . won’t . . . question . . . their . . . strategy.  

 In fact, consider this. One of the bail insurance lobbyists posted something just yesterday claiming that bail reform in New Jersey was all messed up, trying to spin a message that said, “Hey, it’s okay, because pretty soon bail reform will go away.” But underneath that post was another one with a frantic comment saying, “Bail reform is everywhere – it’s closing down offices – we need help, money, research, etc.” That comment summed it up. Bail reform isn’t going away.

 By the way, that same post also tried to give a bit of hope by saying that the New Jersey Council on Local Mandates would soon be giving a favorable ruling on New Jersey bail reform. Well, guess what? They gave that ruling in December and it wasn’t favorable to the industry.  

 Yeah, I know we live in 2017, and so I guess I shouldn’t be surprised when news is manufactured to suit some partisan, moneyed interest. But it shouldn’t be that way, you know? News should be news. I figure this whole thing is linked to some big master plan the insurance companies developed with that PR firm they hired.


 All in all, this whole Shore News Network thing makes me think that something is smelly on the Jersey shore. Free of editorial distortion, maybe, but still really smelly.  

Friday, February 3, 2017

American Bail Coalition’s PR Problem


Well, you know when someone has a public relations problem; it’s when they hire a big PR firm. ABC did that recently, and now that firm is peddling ABC’s lobbyist, offering to bring him all over the country for interviews about the horrible mess they call bail reform.

So what’s the problem? Well, for one thing, there’s no mess. Bail reform is going quite nicely, in fact. And that's a problem for ABC. 

So ABC’s PR company sent out a letter that lists a bunch of scary people who got out of jail in New Jersey without posting money bonds, and somehow the company hopes that people will think that’s some sort of travesty.

But they forgot to mention a couple of things in that letter. Like, they forgot to mention that, in the past, those same people would have been released by paying money to a bail agent, with no risk assessment or supervision. They forgot to mention that, in the past, if those people committed a new crime, neither they nor the bail agents would lose any money. They forgot to mention that, in the past, the judge would probably then just set another money bond and the same thing would happen again. In short, the old system in New Jersey was just a mess, and bail reform is cleaning it up. Oh yeah, and they forgot to mention that none of these scary people have done anything wrong while on release. Man, that is a PR problem!   

But really, ABC doesn’t need a PR company. It needs help keeping its story together. I mean, first it says that everyone has a right to bail, and then it acts like all the people they list are too dangerous to release. There’s oversight and accountability with a money bond? What kind of oversight? A bail agent with a contract to take someone’s mother’s car if he skips? In New Jersey, the new system has created an entity to supervise defendants for court appearance and public safety based on conditions designed from actuarial risk assessment. What kind of accountability? The fact that the guy’s family put up a jet ski? In New Jersey, the new system makes defendants accountable through pretrial supervision, sanctions for violations, ratcheting up conditions, and the possibility of new charges.

The Big PR Problem that ABC has is that the future of pretrial release and detention in America doesn’t include insurance companies that can afford to hire big PR firms on bail agent money but that never pay out on bail agent claims. The insurance companies’ problem is that bail reform is inevitable, and that due to their own lobbying efforts over the last several decades, they’ve ensured their own demise.


You know what? ABC won’t even know what I’m talking about when I say this, but the fact that they think bail reform is something that PR can solve, means that they’ve already lost. 

Tuesday, January 31, 2017

Those Disingenuous Bail Insurance Companies


If you look on the various websites from the bail insurance companies, they’re full if “shocking” accounts of so-called dangerous people being let out of jail in New Jersey, presumably in an attempt to scare people away from bail reform.

Of course, the insurance companies don’t tell anyone that if the judge would just put a bit of money on someone’s head, they’d be glad to help them get out of jail no matter how dangerous they are. We all remember that’s how it worked before, which is why those companies are getting their hats handed to them lately. Saying that the new way of doing things is somehow a “public safety concern” when there is nothing that bail insurance companies do or have ever done to protect the public is pretty sad.  

Under New Jersey’s new bail law, if someone is truly a danger to the public, he or she can be detained without bail. In the old days, those dangerous people would just pay some money to get out and – get this – if they broke any laws while they were out on bail, they wouldn’t even have to forfeit the remainder. That little glitch in the system was brought to you by – yes, that’s right – the bail insurance companies.

Over the last several decades, the bail insurance companies have systematically helped to erect a system that keeps them as far away from defendant behavior and public safety as possible. So they really shouldn’t be surprised that when a state starts really caring about public safety at bail, it’d leave them out. This is just an example of chickens coming home to roost.  

Two idioms in one post?

Must be the caffeine.





Friday, January 20, 2017

What Would MLK Say?


Leave it to the bail insurance company lobbyists to spin a holiday like Martin Luther King, Jr. Day.  On Monday, ABC posted a nice little story about a guy who once bailed out Martin Luther King. If you read the article, you’ll see that King’s bail out was just a single noteworthy episode in one man’s long and interesting life. No details or anything; just that it happened. I suppose ABC wants people to think, “Hey, look at us. We bailed out Martin Luther King, Jr. We’re great!”

But there’s another guy who bailed out Martin Luther King, and that story’s more telling. In 1963, King was arrested for conducting a parade without a permit in Birmingham, Alabama, and was told he couldn’t leave jail without posting $5,000. Who knows, maybe that amount was appropriate for a permit-less parade, right? Maybe the Reverend Martin Luther King Jr. was “high risk” to flee or commit serious or violent crimes while on pretrial release. Maybe he had “burned all his bridges,” as the insurance lobbyists like to say, because the $5,000 kept him in jail. Nope, none of that.

A.G. Gaston bailed out King, but only after convincing him that the civil rights movement needed him more outside of jail than in. You see, King wanted to remain in jail to highlight an unjust system. It was part of the “jail, no bail” policy started in 1960 by activists who reasoned that paying bail or fines indicated an acceptance of an immoral system and also depleted their resources to participate in the movement.  

So King got out, but not before he wrote his famous “Letter from Birmingham City Jail,” in which he explained to other clergymen why he chose to travel to places far from his home to willfully disobey what he considered to be immoral laws. As King wrote, “I am in Birmingham because injustice is here.”

The thrust of King’s letter goes to the heart of what it means to do civil disobedience. People have a moral responsibility to obey just laws, King wrote, but they also have a moral responsibility to disobey unjust laws even as they pay the price for doing so. Quoting Saint Augustine, King wrote, “An unjust law is no law at all,” and to prove his point, King pointed to numerous atrocities committed by Hitler’s Germany, all of which were legal, just as helping Jews or other enemies of Hitler was deemed “illegal.” King wrote: “To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.”

I defy any bail insurance company to argue how America’s bail laws – which base freedom and liberty on one’s wealth – are in any way rooted in eternal or natural law. These laws were created by a class of persons who had money, with no thought whatsoever as to how they might degrade the human personality and spirit through their implementation. We are beyond explaining how money is unfair and doesn’t work. To the extent that governments continue to allow money bail despite these facts means that they are willfully committing immoral acts against their own citizens, a reality that cannot be allowed to continue.

King had more important things to talk about in his letter than bail – homes and churches were being bombed, people were being killed, and the government was condoning a “brutal” form of segregation that required drastic action to curtail. But if he were alive today, I’m convinced that King would be the first to say that even though America’s bail laws are “legal” in the sense that they were once passed by our nation’s lawmakers, they are nonetheless unjust and immoral.

That’s why people are traveling across America today to fix our broken bail system. King traveled to Birmingham because the injustice was in Birmingham. We travel, too, to find and fix injustice.  







Saturday, January 14, 2017

Wow, What a Week in Bail Reform!

This week there were six or seven big things happening in bail reform, and if I say they're big, they're really big. Some of them are behind the scenes, however, so I don't expect the bail insurance folks to even know about them. But a few of them aren't, and so if you don't see anything much in their blogs, you'll know they aren't reporting on everything that's currently going on.

One blog, however, is again asking bail agents to cough up even more money to help the insurance companies to fight everything. Like you all don't give them enough? They make billions per year. How much do you make?

I blog about helping bail agents find a place in the future of pretrial release and detention because I personally know a few really great bail agents, I understand their place in history, and I feel partly responsible for people calling for their complete and total elimination. But those blogs can only go on so long.

Today there's probably still a bit of hope. But when I finally stop blogging about bail agents changing their strategy by getting away from the insurance companies, you'll know I've decided it's a lost cause.

Friday, January 6, 2017

Oops


One of the major bail insurance companies recently posted an article on Facebook from the Washington Post, which was titled, "In D.C. The Federal Government Gives Released Criminals Many Chances to Fail."

Then, commenting on the story, the insurance company said:

The Public Sector Utopian Model of Washington D.C. is the best pretrial program ever 
conceived . . . IF YOU ARE A CRIMINAL! Check out this new article that highlights the many failures of this so called perfect model program. It is time for the rest of the country (New Jersey, California, Texas, Maryland) to call out the lies of the public sector release advocates and shine a light on what they are truly selling us . . . LESS ACCOUNTABILITY, INCREASED COSTS, MORE CRIME AND THE COMPLETE BREAKDOWN OF THE INTEGRITY OF OUR CRIMINAL JUSTICE SYSTEM

The only problem?

Well, the only problem is that the whole article was about sentencing. You know, not bail. Post-conviction. Not pretrial. CSOSA, not PSA. We don't need sock puppets, do we?

I've said this many times before. The insurance companies don't really even understand bail. And yet bail agents everywhere are relying on these companies to design and implement a strategy to get them through this generation of reform.

The insurance companies pay the lobbyists and give them their orders. Right now, their orders are to fight to keep the status quo, which has no plan for bail agent involvement in any future system of release and detention. So unless bail agents figure out a way to separate themselves from the insurance companies, I predict weeping and gnashing of teeth.