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.