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.