The Heritage Foundation’s Horrible History of Bail

The bail insurance companies – oops, I mean the Heritage Foundation – has issued its “History of Cash Bail,” and man, it’s atrocious. It’s rife with flaws, misunderstandings concerning the history and the law, and misleading statements designed to persuade others to retain the status quo and the money bail system. I wrote up about 20 pages on it in only about three hours, which I’m sending to the world, but let me just mention four big errors.

The title, “The History of Cash Bail,” is incredibly misleading. “Cash bail,” as we are all using it today, is a shorthand way to describe secured financial conditions, and those conditions were only used in America starting in about the 1800s. But because the bail reform movement has used the term “cash bail” as a shorthand reference to describe secured financial conditions, the Heritage Foundation, in an argument to keep the status quo, misleads people by trying to argue that “cash bail” or “money bail” has been around forever. This is precisely the bail insurance stand on this, but, unfortunately, both the bail insurance companies and Heritage are disastrously wrong. Under the personal surety system used in both England and America until the 1800s, personal sureties watched over defendants using what we would call today “unsecured bonds,” which involved a system of recognizances requiring people to promise to pay amounts only in the event of default. The sureties could not profit or be indemnified, so money only rarely stood in the way of release (when it did, it was usually considered an abuse). “Secured” financial conditions – requiring something to be paid up front – started in the early to mid-1800s and began to flourish only with the rise of commercial bail bondsmen. Really, until the 1900s, no historian ever called bail “cash bail” or “money bail” when creating a history document, likely because the history of those things would be quite short. And historical accounts of "money bail" in the 1900s (and even the 1800s, such as with De Tocqueville) are uniformly critical. This error permeates the entire Heritage document.

The abstract is also wrong when it says that bail reformers are "seeking to erase the Bail Clause from the Bill of Rights." Again, the bail industry likes people to believe that bail equals money, so that they can argue the elimination of money means the erosion of the right to bail. Well, bail is not money; it's a process of conditional release, and everyone who has looked at the history of bail comes to the same conclusion. Moreover, to the extent that bail reformers are using the courts, they are merely trying to get them to apply other constitutional protections -- such as due process and equal protection -- to a fundamentally unfair money bail system. Heritage merely repeats the main bail insurance company claim that all bail matters must be decided under the Eighth Amendment to avoid talking about fairness. 

The key points are also seriously flawed. I’ll just give one example: Key point number one says a fundamental purpose of bail is to “guarantee” appearance. No lawyer would ever say that, as the Supreme Court has made it clear that “reasonable assurance,” and not complete assurance, is all we can expect from any condition of release. Maybe it’s okay to misstate the law in bail. Oh, wait, no it’s not.

The Conclusion makes an unforgivable error. In the conclusion, Heritage mentions a balance between release and “the need of society to protect against flight and ensure punishment.” The balance, actually, is between release, court appearance, and public safety during the pretrial phase of the case. Saying that the balance includes ensuring punishment is so wrong and monstrously ridiculous that it has never been articulated in that way before. There is simply no basis for saying that bail has anything to do with punishment – indeed, bail designed to punish or to otherwise make it easier to punish (such as by imposing money as a "penalty" for the charge or to coerce a plea) is clearly unconstitutional. This one line shows a complete misunderstanding not only of bail, but of the entire American criminal justice system, and the document should be discarded on that basis alone. In fact, I’m going to go out on a limb here and say that the Heritage Foundation will likely change their conclusion to not mention punishment, or will re-phrase the whole thing to avoid the constitutional error. You just watch.

In between these things, I enumerate roughly thirty mostly big-time errors, which are explained in the twenty page document.  

In my original history document for PJI, I mentioned a video in which a bail insurance guy said he wrote up some sort of research sheet on pretrial services agencies, but that he got ALEC (the bad) to put its name on it because “we didn’t want it to look like it came from a bail bonding organization – we wanted it to look like it came from some neutral, political source.” Recently, one of the bail industry’s flunkies also wrote a history of bail piece, which I blogged about here.  Now, I’m not saying that Heritage just stamped their name on a bail insurance company document, but if it didn’t, then it should say it did, because this thing is so wrong and misleading it would actually be better for the Heritage Foundation to keep its distance from it. Nevertheless, this document certainly looks like an ABC document; it's claims are uncannily similar -- if not identical -- to the claims made by the bail insurance companies in this generation of reform. Indeed, one of the main premises of the Heritage history, that bail issues should be decided by legislatures and not courts, favors the for-profit bail industry for the simple reason that bail insurance companies have had decades of experience giving money to lawmakers to obtain favorable legislation.  

If you want to read about the history of bail, start with my Fundamentals paper and the citations therein, then read my Money paper, and then read my Model Bail Laws paper, which shows how the history can inform re-drawing the line between release and detention (none of which are cited by Heritage). Or, really, read literally anything else besides the Heritage Foundation's History of Cash Bail. 

This is serious. Just recently, two inmates in two separate jails in Colorado died while being "held on bail," meaning a money amount was set, but it likely unlawfully kept them from obtaining release. Heritage is essentially using a misleading history to maintain the status quo, but the status quo is frequently tragic. Indeed, a proper history of bail shows just how tragic "cash bail" really is.

To the authors: Look, I'm sure you guys are nice and smart and really mean well, but you need to watch who you jump in with. I've seen many smart and talented people fall under the spell of the bail insurance companies (often for what I call "bail fame"), but those companies will mislead you, use you up, and toss you aside. It already happened to the last guy who wrote a history for them. A fine organization like the Heritage Foundation should be careful not to be on the wrong side of history. There is a conservative viewpoint on all this, and it mostly surrounds the crucial issue of how large pretrial detention should be in a moneyless system. Don't get sidetracked with a dying industry. That is, unless you did this thing yourselves. If so, you're on your own.  

Bail Industry Loses Hard in New Jersey -- Not Even Close

ABC praises the fact that the federal court in New Jersey found that the plaintiff had standing to sue over bail reform! Woo Hoo! Standing!

All that means is that the person suing is the person who can sue. It's a jurisdictional matter that is so fundamental that most lawyers -- but apparently not ABC's -- make sure they have it before they ever go near the courthouse. The fact that it even came up and seems like it's going to eventually exclude Lexington National means that these lawyers need a nice refresher course on federal jurisdiction.

When it comes to a motion for preliminary injunction, there are four factors that the court balances. I won't bore you all of them because the industry failed to show any of them. Like none. Just like in New Mexico. Zero. Zip.

I will, however, focus a second on the factor that says the party seeking to get the injunction has to show "likelihood of success on the merits." This is the big one, because it gives us a glimpse of the actual legal arguments and how they might eventually stand up if, in fact, the case ever goes to trial.

But as you may have surmised by now, the bail industry didn't show likelihood of success on any legal claim. The Judge wrote: "In summary, neither Holland nor Lexington has shown likelihood of success on the merits of their Eighth Amendment, Fourteenth Amendment, and Fourth Amendment claims. Neither plaintiff has made a showing of a reasonable probability of eventual success on any claim examined above." 

That gives you a pretty good idea of how things will go if this thing ever gets to trial.

Let me quote from the judge: "Finally, if these considerations were a close call -- which the Court does not find them to be -- then the balance would even further tip in favor of denying the injunction because of doubts about Lexington's standing and the arguments favoring Younger abstention."

Bail industry likely to succeed on the merits? Nope. Not even close.

What a Difference Five Years Makes!

Back in 2012, the bail insurance companies released a "PR Web" article saying, "Judges Confirm That Bail Bond Agents Play an Important Role in the Criminal Justice System." You see, some bail insurance dudes apparently went to the American Judges Association Conference that year, conducted a "survey," and concluded that 90% of judges say bail agents play an important role. The article is fascinating, as the insurance dude describes handing out his unbiased survey along with several hundred "I Love My Judge" buttons. I think that's how Pew does it, right?

Oh well, cut to 2017, and you can read the new American Judge's Association Resolution Number 2, in which the association urges judges to, among other things, "call for the elimination of commercially secured bonds at any time during the pretrial phase."

Ouch.

So, I think the lesson is twofold. First, the ABC/PBUS strategy of fighting everything is really backfiring. Second, don't necessarily believe what you read from the bail insurance dudes.  

Bail Insurance Companies’ New Media Strategy – “Fake News”

As much as I hate the term, here’s yet another blog about “fake news,” only because the bail insurance companies don’t have the real kind.  

I was reading this this story about so-called fake news, and it focuses on a particular city in Veles, Yugoslavia, that has made fake news a sort-of cottage industry. According to the story, over 100 bogus websites were tracked to this one city, mostly run by young twenty-somethings hoping to make a few bucks when people merely click to read past the provocative headline. For those of you not paying attention, fake news is generally described as propaganda consisting of misleading information designed either to spread a message or make a few bucks. You make money by “baiting” people with a sensational or provocative headline, and then by getting them to click on it. It’s called “clickbait.”

This particular article focuses on one of the young dudes who creates fake news, but also on a guy named Mirko Ceselkoski, who the article calls the “clickbait coach,” and who used to specialize in websites spreading celebrity gossip and discussing muscle cars. Today, Mirko estimates that he helps about 100 youngsters – the article calls them his “pupils” – operating U.S. political news sites.

But his advice on how to create those sites is what really caught my eye. He said he tries to teach people to pick a story that is already trending somewhat, and then make it sensational, mostly by creating a really shocking headline. “The title is the most important part,” he said. Then, he said, you need to try to make your website look professional by mimicking legitimate sites with rolling banners and phrases like “breaking news” on them. Apparently the title of the site is key, too, as many of them use the actual word “news,” which, I suppose, makes people think they’re, well, legitimate news sites.

And then it hit me! That’s exactly what the bail insurance companies are doing. The title? Got it – says “U.S. Bail Reform News,” so it even has the word “news” in it just in case we weren’t sure. Professional look? Yeah, looks pretty professional and uses the “breaking news” phrase a lot. Titles of the articles? Here’s one: “San Francisco, CA – Suspected child molester FREE TO GO after Judge Joseph Quinn overrules bail setting.” Yep, pretty sensational, and it even names a judge in it so it’s nice and personal. Of course, the article itself never mentions that the same suspected molester would also have been FREE TO GO if he had to pay money to a bondsman, and that if he went out and molested another child, neither he nor the bondsman would forfeit any money. Details.

So, even though I hate the phrase “fake news,” I’m going to have to get used to saying it because the bail insurance companies are now doing it with gusto. And really, this isn’t new. Back in 2011 or so, I documented a speech in which a bail insurance guy said he was putting out information under another group’s title because “we didn’t want it to look like it came from a bail bonding organization – we wanted it to look like it came from some neutral, political source.” And just this year, the insurance companies got caught using another dubious news site to spread misleading information about New Jersey Bail reform.

By the way, it’s been a while since I mentioned the greedy weasels doing all this stuff – you know, the ones who don’t care if poor people stay in jail or if dangerous people pay their way out. Plus, a couple of them have come and gone, so here are the current members of ABC:

AIA Surety

American Surety Company

Bankers Surety (Bankers Financial Corporation)

Black Diamond Insurance Company

Financial Casualty and Surety – A new one! Welcome!

Lexington National Insurance Corporation

Sun Surety Insurance Company

Universal Fire and Casualty Insurance Company

Whitecap Surety

So, bail insurance dudes, because your mothers probably taught you not to lie, and because “fake news” is just a weasel’s way of lying, you get the Weasel Pic! 

Bail Industry Loses Hard in New Mexico

ABC and PBUS decided on a new strategy lately -- suing the states doing bail reform. It must have seemed like a really good idea at the big PBUS meeting, right?

Yesterday, the judge issued an order denying the industry's request for preliminary injunction in the New Mexico case. And man, that judge denied it hard.

Each substantive claim by the industry is quickly and succinctly knocked down -- sometimes in only one or two double-spaced paragraphs. That's an omen of things to come if and when the industry decides to go to trial. That is, unless you all think the same substantive claim will somehow become rational or legally meritorious between now and then.

Keep up the great work ABC and PBUS! The more you sue the people doing bail reform, the less likely it is that anyone else will even consider including you in any solution.

Bail Insurance Companies Hire New Media Guy!

This may seem like a gimme, but wouldn't you think that if a bunch of billionaire insurance companies wanted a media guy, they'd hire someone with experience in big-time media work or at least a graduate from a top American journalism school? Yes, you'd think.

But instead, they hire an ex-bondsman from New Jersey, whose expertise is a couple of websites that post stories under the genre of "Dangerous Bank Robber Free to Go on a Handshake!"

Mainstream media has already figured out the major flaw in the thinking behind these stories: in the previous world, bail agents would be quite happy releasing dangerous people so long as they pay a bit of money. As I've written about a million times before, money won't keep you safe.

So why him? I mean the posts won't work at all in New Jersey. In fact, the industry is gone there and if NJ cares about dangerous defendants, they have the ability to lock them up without money. And they probably won't work in New Mexico -- like I said, ABC screwed up in not knowing about the fact that NM was a "court rules" state. And it looks like they won't work very well anywhere else; everyone who studies bail quickly realizes the flaw in the bail industry's attempt to spin things concerning money toward public safety when money has nothing to do with public safety.

The answer is that this guy and his posts are designed to keep the rest of you bail agents from jumping ship. His entire shtick is "Bail Reform is Failing," and "Hey Look, We're Winning!" That's the stuff ABC has been trying to sell you now for 10 years through three or four different lobbyists. Think about it. Do you feel like you're winning this thing? As long as you think you are, you'll just keep sending in all that money.

I've been telling people for 10 years that bail reform is inevitable. That means there's no turning back. There's no "losing momentum," as ABC says. The only question now is how it will shake out when it comes to moneyless detention. I've told bail agents for years how they could be a part of the future of American pretrial release and detention, but they haven't listened.

ABC says they hired the guy "to act as a liaison between ABC and bail agents" and to "improve efforts when it comes to media and social media."

By hiring this particular guy, though, ABC is showing no real attempt to influence legitimate media. So the main reason must be the liaison part. But don't be fooled; this hire is mostly designed to keep you bail agents in the dark. I assume you'll start seeing the same sorts of posts in every state, and if that's all you read you'll be tempted to hang in there and keep sending your money to the insurance companies instead of forcing them to change their failing strategy, which has no basis in reality.

In fact, if you keep clinging to ABC and the insurance companies that are behind it, then I predict that on that day that the very last bail bondsman shuts his doors, you'll still read a Facebook post by usbailreformnews, sponsored by ABC, that says, "Bail Reform Failed! Hey Look, We Won!"