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.