Thursday, August 31, 2017

A Tipping Point in Bail Reform?

I should have spent a bit more time talking about the Conference of Chief Justices’ brief in the Harris County case because it really is remarkable. You can find it here.

Remember that Harris County was sued in federal court over its bail practices, which were built upon the Texas bail laws. In a preliminary injunction, the federal district court judge essentially said that the way Harris County was using money bail violated the U.S. Constitution.

Now normally if that happened in any other area of the law, you’d see all the other states join together with Texas and say, “Whoa, now, we don’t need a federal court telling us how to do stuff – back off and we’ll take care of it in our court system.” And in most other areas of the law, the federal court might think, “Well, maybe I should just defer to the states on this one.”

But when it comes to bail and no bail, the Conference of Chief Justices – made up of the chief justice in every state, D.C., and American territories – essentially said the opposite. It said, “No, we actually need some help from the federal court because, “Despite general consensus and some notable reform, the promise of equal pretrial treatment for indigent defendants remains elusive.” In fact, it said, “Current bail reform practices will remain largely stalled pending clearly articulated constitutional principles that protect public safety and the pretrial rights of indigent defendants.”

The CCJ wrote that technically it wasn’t taking any sides, but then it came right out and wrote: “The Fourteenth Amendment prohibits the use of monetary bail that results in the detention of indigent defendants solely due to inability to pay.” There’s a reason why ABC went on a rant after the CCJ filed its brief, basically calling the justices liars (or “half” liars), blind to the truth, and arrogant (by the way, great strategy, ABC!). Of all the amicus briefs, this is the one that flattens the bail industry. This brief might irritate you, ABC, but you brought it on yourself by fighting the justices at every turn. This generation of reform could have been defined by the bail industry helping the states and the chief justices to find the answers; instead, you all turned it into a war with you versus everyone else. 

To me, the only thing holding back the Fifth Circuit Court of Appeals from affirming the district court would be some concern that it might be infringing on an area that the states felt they could handle. In this brief, the CCJ says, “Go ahead – you’re not infringing and we actually need it.”

If there’s a tipping point in this generation of American bail reform, then August 9, 2017, the day when every chief justice in America asked the federal courts to set limits on how the states use money bail, might just be it.

Sunday, August 27, 2017

So Much Happening . . .

First, here's an op-ed from the Editorial Board of the New York Times, talking about the lousy arguments the bail industry is using to keep money bail in place. A couple of gems from the editorial: (1) "Pretty much everyone who spends time examining the American system of cash bail comes away with the same conclusion: It's unjust, expensive, and ineffective, even counterproductive." (2) "But the profit motive can be a powerful bulwark against the truth."


Second, here's a single stop on my website where you can get all the briefs arguing against money bail in the Harris County case. Those in the bail industry trumpeting a brief signed by a few AGs might just note the brief signed by 67 current and former prosecutors and AGs representing 30 states and the District of Columbia. But wait, there's more -- defense attorneys through NACDL, religious leaders, the Cato Institute, NAPSA and PJI, the very conservative Texas Public Policy Foundation and Right on Crime, police and sheriffs, the American Bar Association, the Constitution Accountability Center, and even a single Harris County judge writing that he has proven that he can set bail lawfully without money.  

The absolute worst for the industry, though, is the Conference of Chief Justices, which filed a rare brief in support of the appellee (that's the person who was locked up due to money). The CCJ is made up of every Chief Justice in all 50 states and the American territories. I don't even have to tell you what they said; the fact that they filed should give you a pretty severe ache in your stomach.

By the way, I didn't have enough tabs on my website for the Harris County stuff, so I deleted my "donate now" tab. It may come to a surprise to you if you listen to the bail insurance companies, but I've never received a dime from that website. Not even one penny. In fact, while I'm on the topic, I would estimate that I did about 75-80% of what I did the last year for free.

If you're in the for-profit bail industry, the fact that I do most of this for free -- and that I would do all of it for free if needed -- should freak you out just a bit.

Because I'm not alone.

Tuesday, August 22, 2017

Why the Bail Industry Will Soon Be Extinct

In a recent in-depth story on bail reform for NBC News, a bondsman recalled for the reporter the first day of "bail reform" in New Jersey. He saw defendant after defendant getting released pretrial without having to pay money, and he said:

"The idea of putting people in jail -- isn't that the f-king point of not committing a crime? You don't do it because there's a penalty. Now there's not a penalty. These smug jackoffs on the street are laughing."

The bail industry was started in 1898 as a way to help get bailable defendants out of jail, something the American system of justice couldn't figure out how to do without it. Over the past 100 years, the idea of "bail as release" has turned, slowly but decidedly in the minds of many in the industry, into bail as the beginning of the penalty (in the form of money) that should be assessed on people only accused of crime.

I see this notion in the quote, above, but I also see it in the statements of the head of PBUS and the writings of the various bail insurance companies in the U.S. It has permeated the entire for-profit bail industry.

Historically speaking, the bail industry has lost it's way. It has strayed from it's fundamental purpose, and that's why it will soon be extinct.

Friday, August 11, 2017

Bail Insurance Companies' "Historic Compromise" In New Mexico

On February 18, 2016, the American Bail Coalition trumpeted its "historic compromise" consisting of new constitutional language for New Mexico's bail provision. Sounded like a big win for the industry, right? But now I read that the bail industry is suing the New Mexico Supreme Court, saying that the new rules have devastated bail agents in that state.

So what happened?

In my mind it's pretty clear. ABC came into New Mexico to throw a wrench into things -- essentially to fight like it always does -- and ended up ticking a lot of people off. It didn't come in to try to figure out what the judges and others wanted. It came in to fight certain language that it thought would affect the for-profit bail companies' bottom line.

On top of that, I'm convinced that ABC didn't know that New Mexico is what I call a "court rules" state, which means that the bail laws there are implemented by court rule and not by statute. That's important, because you can't lobby a Supreme Court. If I were the industry's lobbyist, and if I decided (albeit wrongly) to fight everyone, I certainly would never have let that language make it through. I think ABC figured it would take care of everything later in the legislature. Problem is, that isn't the way it works in New Mexico.

This complete lack of understanding of bail by the bail industry continues today, In Harris County, the federal judge dropped a footnote saying that ABC didn't even know what the word "bail" meant. In the class action in New Mexico, the state bail association is making the uninformed and bogus claim that somehow the right to bail is a right to having a money bond, a claim that goes against the history, the law, and the pretrial research. I know of constitutional claims that might apply to a new preventive detention provision, but apparently the bail industry itself doesn't know what those are.

The commercial bail industry's strategy to fight everything, combined with a complete lack of understanding of the thing that they are fighting about, will mean the end of the industry in New Mexico.

Not the rules.

Friday, August 4, 2017

Bail Agents, You Lost Me

If you look at my blog over time, you’ll see that I started by trying to send messages to people in the bail reform movement concerning what I called the “basics” of bail, like the definitions of terms and phrases, etc.

Later, it sort of morphed into a platform to illuminate all of the manure that the bail insurance companies were spreading. Along the way, I figured I owed it to bail agents everywhere to let them know about the bail insurance antics and to tell those agents that there could be a place for them in bail reform, if they would only distance themselves from those companies. After all, I liked bail agents, and I sort of figured they were all like me – interested in the right to bail, liberty, and freedom. You know, all that stuff in our constitutions.  

Well, nobody’s listening. And so, bail agents, you’ve officially lost any support I might have given you in the past. After seeing a number of posts by PBUS, “The National Voice of the Bail Agent,” I now just assume you all agree with their strategy to fight everything, align themselves with idiots and publicity hounds, and turn the bail reform movement – something your industry could have helped with – into a mean circus. Today I see the insurance companies attacking New Mexico Supreme Court Chief Justice Charles Daniels personally. How, exactly, does that help your cause and not turn judges against you everywhere?

Yesterday, I witnessed a video in which the illustrious leader of PBUS chased down a person with a microphone with someone shouting, “George Soros!” over and over. Based on what these guys are saying (and remember, PBUS is your “voice”), I’m now questioning whether you even care about the right to bail. Listening to PBUS, all you apparently care about is accountability (a punishment term) and making sure you don’t have to hug thugs. Frankly, if that’s true, you shouldn’t be in bail at all. You should all become prison guards. Do you realize how damaging it is for the people leading your opposition – PBUS and ABC – to basically abandon any notion that you care about the right to bail, what the Supreme Court called “the right to freedom before conviction?”   

I was the only person on this side of the movement who thought you had a place in the future of pretrial release and detention, and now I don’t. It’s my fault. I honestly thought bail bondsmen understood their own history and their potential to help America through this generation of reform. I’ve been writing this for years now, but nobody is listening, and so now I don’t think I owe your industry anything.

From now on, you guys get lumped in with the insurance weasels. And I’m personally going to spend all my spare time convincing judges to simply stop setting surety bonds. And if they simply stop setting surety bonds, don’t ever say you weren’t repeatedly warned.