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.
Monday, April 24, 2017
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.
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