Bail Insurance Response to ACLU/Color of Change Report

I just read the bail insurance companies' first response to the ACLU/Color of Change report that shines a big light on those companies. The response is schizophrenic, as usual, declaring that bail insurance companies are white knights by letting everyone out of jail while, at the same time, bemoaning the fact that bail reform is letting everyone out of jail. I mean, which is it, dude? Do you even believe in bail? Are they defendants or criminals? Do you even know what I'm talking about?

This is just further proof that the insurance industry doesn't understand criminal justice, bail, or constitutional law.

But this particular comment in the response caught my eye: "I actually have to get back to my real job, which isn't funded by taxpayers, but rather by customers who pay us money for providing an important service to the community. Yes, that is called commerce. It occurs when someone creates value through a service or product that people are willing to pay for."

Man, you'd think this guy was selling sandwiches. Commerce? Do you think bail is like other forms of commerce, where manufacturers create a product that people actually want to buy, and with market forces of supply and demand determining the viability of the product? I don't think so, which is why the bail insurance companies are hell bent on forcing jurisdictions to keep money bail so that they can force the demand.

If bail was like commerce, it would be more like a guy selling umbrellas on the street. If it never rained, he'd go out of the business of selling umbrellas and find something different to sell. But if that guy acted like the bail insurance companies, he'd go to state legislatures and get them to make it a law to force people to buy umbrellas even if it never rained. Two on Tuesdays. That's hardly creating a product or service people are willing to pay for. today, all over America, people are voluntarily becoming unwilling to use the bail insurance product, but the bail insurance companies want to force it on them anyway. That's the opposite of commerce.

So his job isn't what I'd call a real job, unless forcing other people (including bail agents) to keep you fat and happy is your idea of real, or a job. You realize, don't you, that in that ACLU/Color of Change report the insurance companies were bragging that they never paid out on any claims? What kind of a service are you providing when you force everyone else to provide the service for you?

Okay, so bail insurance companies don't understand bail, they don't understand the constitution, and they don't understand basic fundamentals of a market economy. And you bail agents are following their lead for what reason again?

ACLU/Color of Change Report on Bail Insurance Companies

We interrupt this blog that rips on bail insurance companies to provide this link to a new report ripping on bail insurance companies. It isn't hard to do -- once you can get past the cloak of secrecy that's a hallmark of all nasty businesses. But this report is great, and the beginning of the end of bail insurance activity in criminal justice.

Some of the highlights -- eliminate the bail industry, and until then investigate and better regulate the companies behind it. And, get this, a plea for some of the larger corporations to act ethically by cutting all ties to the bail industry.

As usual, it's the insurance companies that are causing all the chaos. Bail agents, you gotta cut loose!

Happy reading!

ABC -- We'll Take Harris County Case "All the Way to the Supreme Court"

Bail agents, you better hope they don't, because I really hope they do.

This batch of lawyers failed miserably in the district court. Do you think they'll somehow get any better between now and an appeal, given that they don't really understand bail?

If they take the wrong case to the Supreme Court and lose, it's the end of money bail in America in one single case.

Don't say I didn't warn you.

Who's running this strategy of yours?

Bail Insurance Company “Experts” in Harris County

In my last blog, I showed how the bail insurance companies didn’t even know what the word “bail” meant. That’s a big deal – the amicus in which they screwed up in Houston was written for the case in Georgia by some big shot appellate lawyer. They paid him big money – so they got a big mistake.

Now let’s see how the bail insurance companies fared with their “expert” witnesses in Harris County. They had two. The first is pretty easy to dismiss. The court found that even though he might have known a bit about the history of the Harris County Court back when he worked there, he’d been retired for six years and so his testimony was given “substantially less weight” than contradictory testimony.

The second “expert” really requires a bit of an explanation, but I’ll save that explanation just in case the bail insurance dudes decide (unwisely) to use him again. Suffice it to say that this second guy is a bail insurance lackey (he’s been one since 2010) apparently with an incredible bias toward making sure those companies look good at any cost. But don’t trust me – just read what the court said about him. As you do, remember that when we legal types say something “isn’t credible,” it means we don’t believe it.

“His method for arriving at that number is not clear . . . [therefore, the other expert’s] calculation . . . is the more reliable figure.”

“[His] criticism is not credible . . . [and is] particularly weak given his own analytical shortcomings in studying Harris County’s data.”

“The defendants dispute these numbers, but their expert . . . provided no alternative figures.”

“The defendant’s expert . . . attempted a different method of counting. His study is critically flawed in at least two ways.”

“An even more basic flaw in [his] study was his exclusion of all misdemeanor defendants who had ‘moderate’ or ‘high’ risk scores from the population he considered. In sum, [he] excluded indigent defendants from his survey to conclude that, of the misdemeanor defendants surveyed, none was detained because of indigence. [This] conclusion is not entitled to any weight.”

“These critical flaws undermine his credibility and diminishes the court’s confidence in the reliability of the opinions he expressed, whether deriving from his own research or criticizing the analytic methods and conclusions of others.”

Ouch.

“[His] attempt to salvage his report is not successful.”  

“[His] decision to disaggregate his findings by gender and provide no overall failure rates is puzzling, to say the least. His decision to disaggregate his findings had the effect of inflating the slight difference in failure rates . . . and made it appear greater than the overall rate of failure, which [he] did not provide.”

“His [Dallas Study] is entitled to substantially less weight than the published, peer-reviewed articles in the record.”

Wow. Enough already. Do you get it? He doesn’t know what he’s talking about when he talks about other research, and he doesn’t know what he’s talking about when he’s talking about his own research. And that stuff about inflating the rates? That’s his incredible bias to try to find some conclusion that supports the insurance companies.

I can’t blame this so-called expert for falling under the spell of the bail insurance companies. They offer people boatloads of money and fame – a weird kind of bail fame that comes from having your work immediately thrust into the national spotlight. Other people fall for that, too.  The problem is that now that he’s been ridiculed in court, the bail insurance companies will just go hunt for some other patsy willing to say anything for all that money and bail fame.  

Once again, bail agents, you need to unshackle yourselves from the bail insurance companies. Yeah, they got the county to appeal, but that’s just to buy time to settle. The appeal on this single motion (this is not the trial – it’s just an incredibly huge motion hearing before the trial) will cost a ton more money in just legal fees, and then, even if they win, they’ll just end up in trial with the same judge, the same evidence, and the same expert.

You bail agents in America have to consider removing that word “agent” from your title. You’ve got to find someone who understands how the insurance companies’ protracted “fight everything” strategy won’t work – especially when what they did in Harris County is the best they can do. When you find that person, tell him or her that you want to remain in business, but that you know that might mean changing your business practices. The insurance companies are on their way out in American bail. Your choice is between letting them go down on their own, or letting them take you down with them. 

ABC Doesn't Even Know What Bail Is

So I'm perusing the Harris County memorandum and opinion in the federal case, and I see a footnote in which the court says, "Texas's scheme points up a flaw in the amicus brief filed by the American Bail Coalition [and others]. The brief consistently and ahistorically assumes that references to 'bail' always mean a secured money bail with a monetary payment required up front as a condition of release." That's "a-historically," as in, going against or ignorant of history.

Thats 's a pretty big flaw, because it means the bail insurance companies -- the group developing the strategy to keep money bail in America -- doesn't even know what bail is. This flaw is the basis for a lot of the bail insurance companies' flawed legal claims, by the way, and it's the same flaw advanced by the big time law firm they've hired to litigate these cases.

I've written about this many times before, and they've got no excuse because everything the court said about bail -- what it is and what it isn't -- has been spelled out in my papers. But they refuse to read my papers. I'll let you decide whether that's wise. As the federal court in Harris County said, bail is a mechanism of release. As my papers say, bail is a process of release. We have a thing called bail to release people, just as we have a thing called "no bail" to provide a way to detain them. It's really pretty simple.

Bail agents, the insurance companies are not only losing this thing for you, they're losing it without even bothering to figure out what they're even talking about.

One day, as you're turning off the lights one final time, you'll probably think to yourself, "I suppose before we just followed along with the insurance companies' lost cause, we should've  at least checked to see if they could correctly define the word bail."

Just in case, in my next blog I'll define the words "American" and "Coalition."

Bail Reform and "Accountability"

This blog is called "Bail Basics" for a reason. Every so often, I have to get back to basics and explain some really foundational thing, like the definition of certain terms and phrases.

Mostly I do it because the bail insurance companies mislead people by using the wrong words, and that's the case here.

I'll be brief. Accountability is a term associated with punishment, not bail.
Being accountable is being responsible for your actions. In criminal justice, that happens after we prove those actions. In bail, we say we want "assurances," as in "reasonable assurance" of either court appearance or public safety. That's because we haven't proven any actions yet. That's what the law says. The law surrounding bail and no bail simply doesn't use the term accountability. 

And when we talk about assurances, we don't mean complete assurances, by the way. We mean "reasonable assurances." That's because bail always involves some risk. We take risks in bail and in the substantive criminal law because we're Americans and we're interested in limited government, liberty, and the moral deterrence of the rule of law. That's what the law says, too. 

So, bail insurance dudes, if you want money bail, please don't say you want it because you want defendants to be "accountable." If you do, it means you don't understand fundamental precepts of American law. 

Money Bail Loses in Harris County, Texas

Those of us out changing bail across America over the weekend already saw this, but if you're just waking up, the federal judge in Harris County ruled that "Harris County's policy and practice violates the Equal Protection and Due Process Clauses of the United States Constitution." What policy and practice is that? It's the traditional money bail system used in jurisdictions all over the country.

The memorandum and opinion is long, but you can read it here.

I'll have more in the future on this, only because it was mostly the bail insurance companies trying to run this litigation. They provided the experts (which were trashed in the opinion), and they supplied all the faulty legal arguments. In fact, you can see that the County was out of its depth through what various county officials said on the record. But this loss isn't a loss for Harris County -- it'll survive and eventually make appropriate changes. But the bail insurance companies are going to have to go back to the old drawing board.

Additionally, and to their credit, many criminal justice leaders in Harris County agreed even before the hearing that the system there was unfair and unconstitutional. That's happening all over the U.S.

Let the spin begin. The bail insurance companies will now be trying to convince the county to appeal. It shouldn't, as it will lead to a tremendous amount of money spent on a futile cause. They'll also try to convince bail agents that, in the end, they'll win. So expect an appeal for more of your money as well.

I've worked in law for a dang long time, and I've worked for federal courts. I've never seen anyone put more time and money into a motions hearing than the bail insurance companies did in this one. But, you see, you can't lobby federal judges. You can't change the constitution. And, in the end, you can't hold on to an inherently unfair money bail system.