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.
