Bail Industry Misleads Everyone About New York Bail Reform

The American Bail Coalition just posted a piece on Facebook saying, "Over 100 Community and Advocacy Groups Across New York Reject the Basic Precepts of the No Money Bail Movement." You can read all about that particular letter to New York's Governor here. ABC even has a nifty "Bail Reform" sign with a big red slash through it, as if to say these people don't want bail reform.

Well, before you like, share, or otherwise believe that particular headline, read this from the same letter: "New York must eliminate pretrial detention and money bail for all misdemeanors and nonviolent felonies." And, "For profit bail bonds must be eliminated." For everything else, the money can't detain. Does that sound like a letter that's rejecting the "no money bail movement?"

Really, if you read this entire letter by these advocates, you'll discover that they're pushing a type of bail reform that is far more radical than even I have pushed over the years. And they are justified in doing so; indeed, even though I presented a model release and detention system last Spring, I specifically took that model out to its edges and wrote that anything more limited than what I presented would be acceptable and perhaps better justified by the law and the research.

ABC knows the letter advocates the elimination of commercial sureties. ABC knows this letter presents a sort of bail reform far beyond what even I have promoted. So why mislead people by acting like it somehow goes against bail reform? Really. Why even post it?

The answer seems to be that ABC hopes that people (and especially bail agents) will only read its headlines, and not dive too deep into the substance of things. In short, ABC wants to make its agents think ABC is winning, when ABC most definitely is not. ABC wants agents to read the headline, share and like it, and then move on -- after sending the insurance companies all of their money, of course. 

Get this straight. The basic precept of the "no money bail movement" is no money bail or, at least, no money bail that detains, and the letter fully embraces that. What it rejects is the for profit bail industry.

Read the letter.

Really, just read it. 

The Bail Industry's New Mexico Problem

So now, after New Jersey, New Mexico is seeing the brunt of attacks against its criminal justice system by the bail industry. You've probably already seen them -- posts on various bogus websites saying, "Look At This Dangerous Guy -- FREE TO GO Under Bail Reform." They attack Chief Justice Daniels. They attack virtually anyone they can find who played any part in diminishing the industry's profits. And then the industry uses the same posts in other states to spread fear of reforming the money bail system in America.

The bail industry even got the Governor of New Mexico to declare that the state should "repeal and replace" the recent constitutional amendment, which passed with nearly 90% of the vote. By the way, last I read the legislature asked the Governor to come over and tell it what was wrong with the one that overwhelmingly passed and to provide her alternative, and she didn't go. I can guess why. Clearly, it's because she didn't know the answer on her own and the bail industry didn't know what to tell her.

There are lots of reasons why all this activity in New Mexico by the for profit bail industry is dumb. For one, most of the guys they list as "dangerous" would've been out under the old money-bail system, and if any of them committed a new crime on release, nobody would lose any money. The amendment was designed to allow judges to detain truly dangerous persons without bail, a concept the bail industry still hasn't quite grasped because one day it's for such a thing and the next day it isn't.

But I want to focus on how the American Bail Coalition (which takes its orders from the bail insurance companies) did the biggest flip flop in the history of bail in New Mexico, and ask why the bail agents are so forgiving of ABC and the insurance companies when they make these giant errors.

Back when the new constitutional bail amendment was written, ABC took credit for it, calling it a "historic compromise." High fives for the bail industry! You can read about how great they thought the amendment was back then right here.

But just last week, ABC called for a new constitutional amendment. Why? Well, because ABC didn't really understand New Mexico, New Mexico bail law, and, in fact, anything about writing constitutional amendments. Anyone paying attention could see that despite what ABC did to the amendment to reach its "historic compromise," it was likely going to spell the beginning of the end of money bail in that state. I knew it. A state legislator knew it (I wrote about that here). I'm pretty sure the bail agents knew it, too.

But ABC and the insurance companies didn't know it. And so, in this most recent post, ABC tries to downplay its previous role (ABC says it only wrote an op ed, but it really helped craft the constitutional language itself), and then spends most of its time personally attacking my friend, Justice Daniels. In fact, this is about the only thing that ABC and the insurance companies seem good at. Fight like crazy, lose, and then attack everyone personally. It happened in New Jersey. It happened in California. It's happening in New Mexico. The problem is that ABC and the insurance companies never take time to recognize a trend created by their laser focus on fighting everyone combined with their inability to even understand bail. 

It reminds me of when ABC wrote a brief in the Harris County case. Really, that should have been some crowning moment for ABC. A chance to really explain to the court what bail is and how to fix it. Instead, the judge dropped a footnote in its opinion and said ABC didn't really even know what the word "bail" meant. I wrote about that here.

So, in the end, this is all that ABC and the insurance companies do. They fight everyone and everything (a strategic problem all its own), but they don't really know what they're saying when they're fighting. They throw up arguments just to see what sticks. They change their stance on fundamental legal principles. Heck, they even change their stance on the very purpose of bail and the commercial surety industry itself. Talk about selling out.

When history records what happened to commercial bail in the third generation of bail reform, a footnote will read that the bail industry tried to mount a defense, but its inability of those leading that defense to understand the consequences of a strategy based on fighting everything, combined with its ignorance of its own industry, caused it to collapse.

The bail industry's New Mexico problem is that it shows all of this in full, odorous bloom.

Bail Insurance Companies -- "We Care About Victims, Right?"

The bail insurance companies continue to search for a reason for their existence. In its latest post, one bail insurance company says, “The bail industry . . . has always been about justice for the victim.” It has nothing to do with release, he says: “The bail industry doesn’t release defendants from jail.” No, now it’s all about the victim. This is a huge shift from other purposes the bail industry has floated in the past. But let’s just see how that industry stacks up with victims in the representative case of Maurice Clemmons, a case that is horrible, but indicative of one of the big problems with money bail.

Clemmons had a long and violent criminal history, and at one point he was sentenced to long prison terms. In 2000, Governor Mike Huckabee of Arkansas commuted a 108 year sentence to 47 years, making Clemmons eligible for parole. Violent crimes, parole violations, and further paroles followed. Then, in 2009, he was arrested for assaulting two police officers. Without any risk assessment, without seeing a judge, and without any supervision, Clemmons was released on that charge by paying a bondsman a fee for a $40,000 bond. Oh, and I’m pretty sure that when that particular transaction occurred, nobody checked with the alleged victims in the current case, or uttered a single word about future victims. Clemmons just paid and he got out. 

Within just a few days, Clemmons’ mental state worsened, and police arrested him for raping two children ages 11 and 12. New crimes, new victims. When the judge set Clemmons’ new bail amount at $190,000, he apparently believed Clemmons would stay in jail. After all, he’d been evaluated by two psychologists, who said Clemmons was dangerous and likely to commit further violent acts, and it seemed unlikely that anyone could afford a nearly $20,000 fee to get out of jail. Nevertheless, apparently giving Clemmons a discount from the usual 10% fee, a bail bondsman helped secure Clemmons’ release. Now I’m not certain, but I doubt very seriously that anyone from that commercial bail bond company talked to any of the previous victims in any of Clemmons’ cases, and they certainly didn’t seem to care about any future victims.

Future victims? Oh, yes, that’s how the story ends because within one week, Clemmons traveled to Parkland, Washington, walked into a coffee shop and shot and killed four police officers who were getting ready for their shifts.

As in virtually every other state, in Washington State you can’t forfeit the money on a bail bond for anything but failure to appear, so I’m assuming that the bail bondsmen covering the $190,000 didn’t lose any money on this deal.  

And that, my friends, is how the bail industry truly deals with victims. In short, it could care less.  

And my conclusion comes from personal experience, too. I’ve watched thousands of bail settings, and I’ve seen both prosecutors and police speak about victims. I’ve heard victims speak themselves. Heck, I’ve even seen victims ask the court to let the accused out. But I’ve never once seen a commercial surety say anything even once in any bail setting, let alone about a victim. Just today I’m reading that the man who went on a shooting rampage in California was out on a bail bond with something like a $160,000 financial condition. You tell me how in the world the bail insurance companies helped any of the 14 dead and injured in that case, let alone the guy the shooter allegedly stabbed before he went nuts. Wait until this all shakes out – I predict bad things for money bail due to this case.  

In fact, if anyone out there made money in bailing out Kevin Neal, why don’t you just give all that money back to the various victims you care so much about. Then, start doing that every time someone commits a crime while on pretrial release. Heaven forbid, right?

Anyway, with that one bogus line about its purpose being justice for victims, the bail insurance company lobbyist has also apparently given up altogether on the bail industry’s otherwise noble purpose that existed since it began: to assure the release of bailable defendants so as to uphold notions of American freedom and liberty inherent in our system of pretrial release.

The bail industry’s (and, indeed, bail’s) articulated purpose has never been about justice for the victim; its purpose has always been based in the constitutional and statutory rights of all American persons to be free while facing charges in our criminal justice system. For a while in American history, lots of people were being held despite being “bailable” under current law. The bail industry was this country’s solution to that problem. Surely, we’ve always cared about victims of crime, even to the extent of enacting victims’ rights amendments to state constitutions and preventive detention (no bail) language to keep truly dangerous defendants in jail. But bail (release) has always been a defendant right, and it was always meant to mean the right to release.

In Stack v. Boyle, the case in which the Supreme Court equated the right to bail with “the right to release” and “the right to freedom before conviction,” Justice Jackson wrote: “The practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty. Without this conditional privilege, even those wrongly accused are punished by a period of imprisonment while awaiting trial, and are handicapped in consulting counsel, searching for evidence and witnesses, and preparing a defense.”

That purpose, to help with release, didn’t cover everyone, but it didn’t have to. It covered release, which is a pretty huge thing. In fact, right now I have people who are on my side of bail reform co-opting what should be the bail industry’s purpose to release virtually all defendants pretrial. The problem is that the industry has never really been about the victim (in 1898 it was helping America figure out a way to release bailable defendants who had no personal sureties), and it shouldn’t try to be about victims now because it will just seem ridiculous. Bail, and the means for release through the commercial industry, has always been about the defendant. And bail, release, and defendant’s rights are all covered by our constitutions. That should be enough.

In sum, the bail industry once had a pretty noble purpose. But now, in their quest to remain profitable, the bail insurance lobbyists are tossing that purpose aside for whatever they think will keep them afloat. One day the presumption of innocence doesn’t apply, the next day it does. One day it’s all about freedom, the next day it’s not about freedom. One day it’s public safety, the next day it’s back to court appearance.

In the end, if the industry itself doesn’t even know its own purpose, there’s absolutely no way it will survive.

By the way, the lobbyist also says that none of us bail reformers mention victims, which is absolutely untrue. First, I’m a victim of crime, and my family members have been victims of violent crime. Moreover, everybody in the justice system cares about victims, and to say we don’t is simply stupid. I don’t expect a bail insurance guy to know that, though, because he’s simply not at any of the criminal justice meetings I attend. Nevertheless, even before a few of us even did a pilot project (just a fourteen week pilot, so nothing permanent) in Colorado, we spoke to every victim’s representative in the state, who all understood and agreed to a better system than the money bail system (one that involved less random releases and that clearly could address public safety for past and future victims). All along the way in this movement, we have included victim reps and sometimes victims themselves at every major event. Moreover, in addition to prosecutors and law enforcement officers, who typically carry the weight on victim’s issues, the Pretrial Justice Institute has at least two board members with national victim advocate experience.  

What do the bail insurance lobbyists have? Just a tendency to make up literally anything – no matter how false and ridiculous – to continue making all that money. 

Yeah, I know this blog is kind of long. But what this bail insurance guy said is really pretty outrageous.    

The Last Days of Bail

"The suggested system does away with monetary bail. [Money] bail arose and flowered during a period when the law had little regard for the rights of the poor. Debtors prisons flourished. Workhouses were used to contain paupers, who were considered a moral pestilence. The adherence to the archaic system of monetary bail is inconsistent with our present legal thinking. The monetary bail system cannot long survive the recent recognition of the precept that a poor man is entitled to the same justice as the wealthy man."

John V. Ryan, The Last Days of Bail (1967)

Academy of Justice Report on Reforming Criminal Justice

If you follow this this link, you'll find an excellent paper written by Megan Stevenson and Sandra G. Mayson on pretrial release and detention within a larger report by the Academy For Justice titled, Reforming Criminal Justice.

That report is an ambitious attempt to "bridge the gap between scholarship on the books and legal reform on the ground," which is critical in the field of pretrial release and detention. 

The Academy for Justice itself thanks the Charles Koch Foundation, Arizona State University, and the Sandra Day O'Connor College of Law (ASU Law) for their support.