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.