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 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 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.
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.
