Janice Dotson-Stephens

Say her name. Five months in jail on a $300 bond. Died in custody.

Exclamation Point

And to add an exclamation point to the idea that the third generation of bail reform has most definitely not "imploded," this week alone I learned that three new states are having summits and/or creating statewide groups to look at pretrial reform in the next several months. I'm invited to two, and I'm pretty sure I'll be participating in the the third because I've been out there several times already.

This thing is just now taking off.  Get used to being disappointed by the bail insurance companies and ABC.

"The Fourth Generation of Bail Reform?" That's a Joke, Right?

So in an opinion piece the other day, ABC announced that the "Third Generation of Bail Reform" had imploded and that, in its place, the "Fourth Generation of Bail Reform" had begun, which appears to be some wishful retreat back to the money bail system.

This has always been the problem with ABC and the insurance companies it represents: it simply doesn't know anything about bail. If it did, it would see that this generation of reform is only just beginning, is inevitable based on historical markers and the issues involved, and will not end simply due to the various hiccups caused by states jumping the gun. And even if it stopped, as it eventually will (history shows it will take decades, though), you won't see another "generation" immediately after it. Generations of reform are separated by long periods of time. But ABC doesn't understand bail. And it certainly doesn't understand bail reform. Cases in point: (1) for the first 7 or 8 years or so in this generation, ABC said there wasn't anything wrong with bail; in this piece it says it's a "broken system;" (2) for the first two or three years, they denied the presumption of innocence even applied to bail; in this piece it ends its piece by calling it "precious." I could go on.

So if ABC knew anything about bail reform, it wouldn't say a generation has "imploded," let alone announce that another generation has begun. No, ABC is telling everyone that bail reform has imploded to make sure it's agents have no doubts about sending all that money to the insurance companies. After all, the insurance companies have quarterly profit reports to maintain (recall that the amount of money paid to those companies in 2017 dropped for the first time in 5 years). Bail reform is scaring the crap out of the insurance companies, and they need money to fight it -- no matter how lousy their strategy might be.

Think of bail reform broadly. Whenever we see the wrong people in or out of jail, we see bail reform. This has happened throughout the history of England and America, and it's happening now. What is the cause of this dilemma today? Our use of money at bail. But even if we decided to use money differently at bail -- for example, if judges made all bail amounts affordable -- the reform movement would not be over, because using money differently would only illuminate what the states must change in order to do pretrial release and detention on purpose. That means changing statutes, constitutions, and court rules.

I called this the "Third Generation" because I saw it as a movement that would go far beyond the money system and that would ultimately affect all states (just like the previous two). I still believe that. And if you're a bail agent out there, and you don't understand exactly what I'm talking about when I talk about nets and limiting processes, unintentional and intentional detention, then ABC hasn't fully explained what this generation of reform is even about.

Oh, and imploding? Tell that to California. The people in charge in that state are already comparing the bail industry to the plastic bag industry (they tried the same thing with a referendum), and so the California agents' days are clearly numbered.

Imploding? Tell that to the five or six other states who are showing me language that eliminates money and makes gigantic changes to their constitutions to re-draw the line between purposeful release and detention. By the way, in these discussions, our big debates are about intentional detention; getting rid of money is often an afterthought.

Imploding? Tell that to the multitude of jurisdictions who will be adopting the PSA (after doing their homework, they'll how actuarial tools can be used properly) and will begin doing release and detention on purpose through the training of LJAF. That, in turn, will also lead to massive legal changes. Heck, even if states completely reject actuarial risk tools, they'll just use some other form of risk assessment (you don't replace money with risk assessment as ABC writes, you replace one form of risk assessment with another form of risk assessment), and it'll still be the end of money. Everyone on our side knows that. Money screws up intentional release and detention. Every time ABC says, "They're replacing the right to bail with risk assessments" or "They're replacing money bail with risk assessments," I get to go in and correct it, and the states are listening to me because ABC's error is so fundamental.

By the way, since I don't blog much anymore, I thought I'd clear one thing up. ABC places a lot of force behind what we all call the "100 signatory letter," in which a bunch of civil rights groups called for not using actuarial risk tools and then give a bunch of cautions in case states still decide to use them. There isn't enough space to explain it here, but the call to not use the tools is wrong and won't work in any event. In fact, the letter itself lists two or three really great reasons for why a state might want to use one. Once you list good reasons, the issue becomes not whether to use one, but how to use one. Scholars who have studied these tools in depth have all said there's more than just the two or three good uses, and states will use these things in any event.

But I write this aside because it was due to ABC's incredible spin on that letter that caused those same 100 groups to release a document decrying money bail, opposing the commercial bail industry, and condemning ABC for misleading jurisdictions. That document -- the one ABC doesn't tell you about -- is really forceful when I hand it out around the country. We'd have never created it if ABC had just stuck to the facts about the original letter. Bottom line is that if anyone puts the brakes on "risk assessment," it's only because they jumped the gun on bail reform and need a bit of education. When educated, states reject money and see this form of assessment as merely an evolutionary step in a 1,000 years of risk assessment. ABC isn't a part of the discussions I have, so it's probably no wonder that it doesn't know anything about what people are really saying about "risk assessment," including actuarial tools. Remember, though, that's ABC's fault. It had a chance to join with everyone to find solutions, but all it did (and does) is fight. Actuarial assessment isn't something you fight, but ABC simply doesn't understand that, or basically what I'm even talking about.

That aside, the Third Generation of Bail Reform is most definitely not "imploding." If anything, the bickering about how, exactly, to do release and detention is a clear sign of its growing strength. If people weren't making changes, they wouldn't be talking about this stuff. Twelve years ago most people simply told me, "If it ain't broke . . . "

So that's why I can only figure that declaring the reform movement over is a ploy designed to keep agents from jumping ship. But I get it. ABC would like to paint me and others like me as crazy when we say, "Bail reform is inevitable." But I've been doing this now for about 12 years, and I haven't been wrong yet. I called this the Third Generation simply because parts of it cannot be stopped. It's not about rich and poor (although that's important). It's not about how we assess risk (although that's important, too). The movement is about change, and by advocating that states "return to the simple system" that existed for the last 400 years, ABC has missed the point entirely. States want to change and ABC is fighting change. It's that simple.

You bail agents should back up and assess what's going on here. I've said that the insurance companies don't know anything about bail, that his opinion piece just affirms what I've said. There's still one way for bail bondsmen and women to stay in the business of release and detention in America, but it means distancing themselves from bail insurance companies, hiring a lobbyist for themselves that doesn't peddle the insurance company garbage, and starting on a plan that helps states figure out how to release and detain the people they want to release and detain with what used to bail agents as a part of it. In an intentional release/detain system, you won't be seeing those gigantic numbers (you know, like "$100,000 bail," which is why the insurance companies will be gone), so get used to the idea of making service work money. Like I said, at the end of the piece ABC admits the system is broken. So quit thinking like bail insurance companies, and start thinking like reformers and help states change.

What have you got to lose? After all, it's not like the insurance companies have been your friends. They don't do anything because you do all the work. They don't lose any money because you take their risk. Instead, they lose in state after state because they fight everything the states want to do. Oh, and they make dumb statements like, "The Third Generation of Bail has imploded."

Changing Bail Laws

My new paper is titled, Changing Bail Laws, and you can find it here.

It again answers the question, "If we change, to what do we change?," and is designed to be used along with my earlier paper, Model Bail Laws. It's shorter, though, so it simply raises the issues, and only solves the ones I thought were most important (like the need for a charge-based detention eligibility net). The longer paper is still helpful, and can be thought of as a template to show states the kind of detail work necessary to answer all the questions and to justify pretrial detention provisions. It is my model. States can come up with a different model, but I expect them to justify it to the same extent.

I have had several people ask me what they should change in order to accomplish a moneyless system of pretrial release and detention. This paper is my answer.

If I say to you, "California's SB10 created a detention eligibility net outside of its constitutional boundaries and a further limiting process that is subjective, resource-driven, and ineffective," and you don't know what I'm talking about, then please read these two papers. This, in my opinion, is the future of the field.

California? Dude!

This is the longest I've gone without a blog. I've simply been too busy spreading basically the same message across the U.S. The gospel according to no money bail will soon be coming to you.

A lot has happened in a month -- some good, some bad, but I really just lack the time to report on all of it. Too many airports and hotels.

California eliminating money bail is an entirely different matter, however, only because I've been warning about this happening for a long time.

In multiple blogs I have warned that the bail insurance companies' strategy of fighting everything and everyone while not offering solutions (no, keeping everything the same is not a solution) would eventually lead to the elimination of the industry. And California is simply the latest case in point.

ABC (oh, by the way, I wouldn't blame the ABC lobbyist for any of this -- he takes orders from the suits in the insurance companies) traveled to California like me and presented its information. Then, when things looked like they weren't going their way, the insurance companies started fighting -- even insulted  the Chief Justice of the California Supreme Court. Nice going, guys. When the time comes to decide whether to keep commercial bail, people remember all that animosity. So now you're gone, and the only thing that can save you is a statewide ballot initiative?

Maybe some of you don't remember, but all of this started a long time ago when a bail insurance guy came to my little county and decided to try to end our county pretrial services unit. When that didn't work, and it looked like we might start making changes to the money bail system in our county, the bail industry really ramped up the fight and even eventually tried to run a statewide ballot initiative, basically picking a fight with everyone in criminal justice. We fought back and won big. The irony? The irony is that it was a lobbyist from a California-based bail insurance company that got that whole fight started in Colorado. Again, nice going. When we end money bail in America, I'll be giving a medal to that particular bail insurance company.

Since then, though, I felt bad about what seemed to be the inevitable plight of the bail agent, and so I spent years laying out a plan that would include those agents in the future of release and detention in America. But the industry did not listen. Instead, through ABC and that other group, it fought everyone -- often personally -- and slowly burned bridge after bridge until finally what you see is everyone simultaneously tossing the industry aside like as an afterthought.

So now I see from the bail insurance companies' posts online that their plan is to -- yes, you guessed it -- keep fighting. Fight without thinking. Fight without strategy. Fight without a solution. I suppose they have to at this point. But it's too late. Even if those insurance companies win, that fight will only further sour attitudes against the industry, and in the next round there will likely be money but no commercial sureties. Count on it. And that's only if they win. Remember Colorado? I spent 6 months of my life fighting the industry and helped us win that initiative 2 to 1. Someone told me they spent millions on that initiative. We spent $10,000.

Bail agents, you've hitched your fate to the bail insurance companies and their lousy strategies. You really should have expected this.

A Bad Couple of Days for the Bail Insurance Companies

Yeah, it's been a bad couple of days for the bail insurance companies.

First, they lost that big case in the Third Circuit -- you know, the one they convinced you they'd win because they spent all that money on some big shot lawyer. You know, the insurance companies keep trying to convince courts that they know what "bail" and the "right to bail" are, but they keep getting told they're wrong. I find it really interesting that bail insurance companies and their lawyers don't know what those words mean.

Then, yesterday, the Arnold Foundation mass-released the PSA to all comers. I know the bail industry doesn't know anything about all this, but take my word for it, it ain't good for the bail industry. I never could figure out why insurance companies would base everything they do on actuarial tools except bail. Oh well, all I know is the bail insurance companies don't like them, and now they'll be everywhere. Plus, wait until you see the training behind them! No more money.

Then, today, there's this in the National Review. Seems like people in America want to change the way we do bail and no bail.

Yep, things are definitely changing. Bail reform is low hanging fruit.

Bail Industry Loses in New Jersey (Again)

This is getting pretty old. When I go back into the old bail insurance Facebook posts, I see how excited they were about telling bail agents that their savior, Paul Clement, was bringing a suit in New Jersey that will put an end to this whole bail reform thing.

When the insurance companies lost in the district court, they tried to spin it, but I wrote about it here.

Well, it went up to the federal circuit court, and the bail industry lost again. Here's that opinion. I see they're spinning that decision today as well.

I don't have enough time to document all the instances in which bail insurance companies mislead bail agents by hyping their work at battling bail reform. But I can't think of a single time that a bail insurance company blazed some giant headline of "Breaking News" to announce a thing that, six or seven months later, didn't fizzle out.

There will eventually come a time when bail agents everywhere will realize that the insurance companies don't know anything about bail, have no strategy to deal with what is likely the demise of the industry (the strategy they've chosen, to fight everyone and everything, is only making judges decide not to use commercial surety bonds), and missed out on the opportunity to actually help jurisdictions with pretrial release and detention.

Wall Street Journal Article About the Bail Industry

Here are two tidbits from yesterday's Wall Street Journal article about the for-profit bail industry:

"Overall, the net premiums of bail bonds written nationwide declined for the first time last year following five consecutive yearly increases. In 2017, premiums written dropped 3.8% to $119.5 million, according to insurance-ratings firm A.M. Best."

"The A.M. Best Report shows that the total face amount of bail bonds posted in the U.S. dropped to $15.9 billion last year, a 4.4% decline from 2016 and a reversal in the trend from the previous three years." 

How's that ABC strategy of fighting everything look to you now? Are you still winning, or is something else going on? 

By the way, ABC's focus on "risk assessment" is misplaced. Risk assessment tools only replace other forms of risk assessment. Money is risk management. Other forms of risk management replace money. The insurance companies don't know what they're talking about when it comes to risk assessment, which is kinda weird given that insurance companies use actuarial risk assessment tools all the time (and when we explain this to various stakeholders, everyone laughs with that kind of "wow, how can they be so dumb" laugh). The industry has bought into a strategy by bail insurance companies that are ignorant about basic principles of bail, including the very definition of bail (see Harris County order granting preliminary injunction at footnote 20). Accordingly, I expect to see many more articles like the WSJ article in the future.

Al Jazeera Video About Bail Reform

Here's a little video about bail reform from Al Jazeera.

I've been watching posts from the bail industry for a long time, and I can tell you that there is nothing in this video that it'll like. It was a bit of a gang fight, with ABC losing due to its inability to concede certain basic facts about the money bail system. 

So . . . I assume that even though someone from ABC was on the show, ABC either won't mention anything about it, or it'll start attacking Al Jazeera and the others personally.

ABC's intentional strategy to argue and fight everything, rather than to think of solutions, is the cause of all of this. Bail agents, this is your future.

Judges/County Lose in 5th Circuit

You know, the only reason I think I keep this blog going is to occasionally tell people how things actually turn out.

ABC's Facebook page still has the big "Breaking News" banner about a bunch of judges in Harris County demanding some new injunction and the County asking for rehearing in the O'Donnell case.

Well, they lost all those motions.

You can thank me for bringing you all up to speed.

John Legend Lends His Voice to Bail Reform

Here's a nice video titled, "The Truth About the Cash Bail Industry," narrated by big time music star John Legend.

Let me guess, ABC, now you're going to write bad things about John Legend, right?

Really? Even though he played Jesus?

Fight, fight, fight. Where has it gotten you?

Google and Facebook Banning Commercial Bail Ads

Several people emailed me to tell me about this. Yep, Google and Facebook are both banning ads from the commercial bail industry. You can read about it here.

Why is this a big deal? Well, in addition to just the fact of it, it's because of a couple of things called cognitive dissonance and backfire. Cognitive dissonance is basically the state of having inconsistent thoughts. People don't like it, and they mostly strive for consistency with their various views. To do this, they often seek information that reinforces preexisting views and ideas. This is a really powerful phenomenon; in fact, in a couple of studies a year or so ago, some researchers actually found that if you hold certain beliefs strongly enough, even objectively false statements will cause you to become even more firmly entrenched in your sometimes false views. In other words, presenting the actual facts to people holding certain false beliefs "backfires," and causes them to believe their false ideas even more strongly.

This, in my opinion, is why people in the bail industry are constantly befuddled by everything that's currently happening. Everyone in the industry has pretty firm beliefs, and so all statements -- true or false -- are likely woven into the existing narrative of why commercial bail is such a great thing. In fact, if those researchers are right, bail industry people will continue believing that money bail is a great thing, and no matter what we say they'll only believe it more firmly.

But the bigger problem for commercial bail is that the vast majority of people in the United States have absolutely no preexisting notions about bail. That's why, when you explain things to regular people, they don't necessarily like money bail. And it's why, for example, companies like Google and Facebook would immediately choose to forgo advertising revenue from the industry rather than to be a part of the money bail problem. See how it works? Now Google and Facebook have certain beliefs about money bail that they didn't have before, and presumably they'll be looking for facts to support those beliefs.

By the way, this rather dramatic showing of public disdain for the bail industry is very likely caused by the tactics of ABC, which fights everything, treats their own clients as criminals, and personally attacks and insults those who question the status quo. Oh, and when ABC says people are trying to get rid of people's right to bail, what they mean is money bail, and there's no right to money bail in America. Another part of ABC's strategy is apparently to confuse you about the law.

I'd tell you more about the law and the fact that ABC's overall strategy is failing, but cognitive dissonance and backfire tells me that you'll only take it to mean the opposite of what I say.

The Bail Insurance Companies' Personal Attacks

Okay, I'd expect this from PBUS, but not from ABC. But once again, the bail insurance companies show how low they can go by posting personal attacks against various people they believe are behind this generation of bail reform.

They're trying to subtly hide them by putting all the personal attacks on a separate site and FB page, but unfortunately the address for that is the same address listed for ABC on it's main website. Make no mistake, if it's against bail reform and it's trashing someone personally who is for bail reform, it's probably the bail insurance companies that are responsible for it, no matter how many layers they use to shield themselves.

Specifically, ABC has been naming people and questioning their motives, insulting them, and even portraying them in horrible (I suppose ABC thinks they're funny) pictures. Really, has anyone ever taken a picture of a sitting justice on a state supreme court and portrayed him as the devil? Yes, the bail insurance companies have.

Early in my bail career, I named one guy publicly and quickly came to regret it. I shouldn't have named him because he was just doing his job, which just happened to include a radically different ideology than my own. In fact, at the time I named him, I didn't really even think I was doing it as a slight -- it just turned out that way later on. I named another guy privately, but he forced me to do it. Then he decided to become an expert witness for the bail insurance companies, and, well, you're just asking for trouble when you do that. I think maybe he retired.

Since then, though, I've really tried (and, believe me, it's hard) to not name actual people in this bail reform thing. I'll talk about the companies and their lobbyists, but nobody should have to walk around thinking some goofball has put their picture on the web with horns and a tail. If you know me, you know that mostly I talk about issues (feel free to read some of the papers on my website). I write all the time, and none of it is about individual people, unless you count someone like Alexis de Tocqueville. My last paper was 200 pages and all I talked about was constitutional language. Can't you insurance companies at least try to do the same thing?

I want you bail insurance people to ask yourselves a question. When you were little, and your mother asked what you wanted to do when you grew up, did you say, "I'd like to trash the personal character of anyone who gets in my way of making gobs of money?"

The other day a bail insurance dude asked, "Why don't you just ask the bondsmen?" Well, one reason is that whenever we ask people in your industry about the issues, we get personal attacks. And, bail agents, just remember that personal attacks are the sign of desperation. Argumentum ad hominem seems okay, but it never works. The fact that this logical fallacy even has a name ought to tip you off.

There's still time for you all to create a decent strategy around this thing that doesn't involve personal attacks. The fact that you make them at all, tells my you don't know what that strategy even is.

This is the sleaziest thing you've ever done, and it plays into the slow degradation of our civil discourse. For that, you get the weasel pic -- twice.

ABC Says Bail Reform is Ebbing . . .

I say, better check out the front page of today's New York Times:

This thing is really only getting started.

And just wait until they do the deep dive into bail insurance companies!

A Different Kind of Bail Case

Every so often a case comes across my desk that’s really interesting.

In the old days, if a judge set a money bond, you’d get some opinion on review saying, “We review this for manifest abuse of discretion, we see none here, so affirmed.” Or you might have a one liner saying that the judge didn’t violate the constitution. Or you might – just might – see it sent back to have the money amount adjusted. But not this time.

Nope, this time a federal judge ordered the defendant freed with no money attached. One day the defendant is in jail on a $330,000 bond, and the next day he’s FREE TO GO with NO SKIN IN THE GAME.  

It’s in a case called Reem v. Hennessy, and it’s out of the U.S. District Court for the Northern District of California.

It started with a California Superior Court judge setting a $330,000 financial condition of release for an indigent and homeless defendant named James Reem. When that order went up for review, the habeas court sent it back down saying that the Superior Court judge failed to properly consider alternatives to detention. So the Judge held another hearing, kept the money condition in place, and declared Reem to be high risk for public safety. On review again, the habeas court ruled that setting a money bond for public safety when you can’t forfeit it for public safety is irrational, and thus unlawful (that’ true because it would fail under any legal theory requiring at least a rational relationship between ends and means.)

As an aside, another guy and I have been preaching this for years. If we can get courts to see that in virtually every state setting money for public safety is irrational, that would leave only flight, and my personal belief is that very, very, very few defendants would ever present an unmanageably high risk for flight.

Anyway, even the least skeptical of us would still guess that after the judge was told he couldn’t base it on public safety, he’d just reset bail and, this time, base it on flight. And sure enough, that’s what the judge did – found Reem to be a significant risk of flight – and so he kept the $330,000 condition in place.

Now here is where normally you’d expect things to end. But not this time! This time the reviewing court actually looked deep into the evidence the Superior Court Judge used to set the money bond based on flight and found that the evidence didn’t meet “minimum standards of reliability.” Holy smokes!  

Three times up, and three times the habeas court finds the Superior Court Judge violated the constitution. In the words of the decision: “Here the state has twice failed to correct the constitutional deficiencies in its order. Accordingly, Reem must be released.”

Some in my circles will call this horrible – after all, it took three times to get to the result. But I’ve been around and I call it progress. At the very least, times are certainly changing.

By the way, the bail industry could care less about cases like this. Reem didn’t have any money for a fee, and he certainly couldn’t cover the entire cost of the bond with collateral. But the industry should care, and reviewing courts certainly do care, and it’s cases like this that will change the legal landscape for money bail. The arguments used to release Reem are the same arguments being used to get rid of money bail in all amounts for all defendants. For every case like Reem that the industry lets go by, or doesn’t tell you about, we’re that much closer to the end of money bail.

Another Big Time Article About the Bail Industry in Maryland

Here's another story about the bail industry in Maryland. Unlicensed bail bondsmen going after money through the very courts they disparage when they don't set money bail. And all this even as the bail company is being investigated for operating without a license.

There are a number of reasons why this industry is on its way out. First and foremost, though, is that it has forgotten whatever noble purpose it had when it was created in 1900. Today, the industry basically calls its clients scum and criminals (even though they aren't convicted). It says they lie about how much money they have. It claims defendants are the most dangerous people on the planet -- all because they didn't pay a fee (you know, all those FREE TO GO stories on Facebook, even though "free to go" is also known as freedom and liberty under our Constitution).

You know what I'm talking about -- "They're not in there because they're poor -- they're in there because they broke the dang law." That's the kind of leadership and strategy coming out of the main bail organizations. ABC's lobbyist can always get another job. After the bail industry, there'll be some other big deal thing that he can argue for.

At the end of the article it says, "Advocates will need to delve more into the ways bondsmen do their work in practice." Better hope they don't.

Oh, and if you want a bit of perspective, go onto the Pretrial Justice Institute and just look at all the articles and stories in the news about bail. About 3% of them get sent to you through ABC, AIA, and other bail organizations. Read the other 97%, though, and you'll see where this whole thing is going.

Bail Insurance Companies Being Fooled By Their Own Lobbyists?

I don't normally write about the same thing twice in a row, but I think I will due to ABC's "breaking news" trumpeting a win in the Harris County case. So I have two things I want to direct right at ABC.

First, ABC, I know you all think you've pulled one over on the people on our side. Yeah, I know, you argued for the analysis under the 8th Amendment, and you ended up with a revised remedy (that may or may not resemble the full injunction) that kind of looks like that. Well, we ain't fooled. We know all about what the law is, and you won't win -- especially if you start focusing on the state right to bail (you know, the state-created liberty interest). Even your own attorneys knew the limits presented by the state right to bail, so you're definitely history on that one.

Second, ABC, for the benefit of the people who rely on you to tell them the truth (including those insurance dudes who seem bamboozled by the legal talk), did you forget to mention to them all the things you argued that ended up getting slammed by the Fifth Circuit? Sure, now you say, "All we ever wanted was a little procedural due process," but that's not what you argued. Nope. You argued there wasn't even an equal protection or due process claim, only an 8th Amendment claim, and that got slammed. You argued that Younger abstention applied, and that got slammed. You argued for rational basis scrutiny, and that got slammed, too. You argued that all the factual findings (including the trial judge's factual findings that all those wonderful studies you send out to bail agents everywhere were "not credible) were wrong, too, but the Fifth Circuit specifically upheld them. That's a big deal because it's those facts through which you lose a substantive due process or equal protection claim. You gotta know that, right?

Face it. You only said you were for procedural due process once you realized you'd lose on substantive due process and EP. Oh, and I'm teaching people how to beat you on an 8th Amendment claim, so get ready for those, too. Plus, what you're advocating for is a clear violation of virtually every state's right to bail provision, so watch out for that claim as well. Violating the state right to bail provision is what changed New Mexico. Now I realize that New Mexico is sort of a sore subject with you because you were lost through that whole thing. Well, take my word for it. Justice Daniels said judges had to follow the right to bail provision in the constitution, and that directive ended up decimating the commercial bail industry within just a couple of years. Bottom line -- when you stop allowing purposeful detention using money, you don't need money any more for anything else.

When it comes to substantive due process, the claim wasn't even brought. One of these days, though, someone will bring it, and you'll see the end of money bail in quick and decisive fashion. What was brought was procedural due process (which you now apparently like even though 8th Amendment analysis wouldn't have given any), and equal protection. And equal protection is where you really lost. The Fifth Circuit specifically upheld the EP claim, and that's going to ultimately lead to mass release without money. Remember, if you decide two people are treated differently because one has money and one doesn't, the remedy isn't to somehow allow money to keep one in and let another out.

Bottom line, ABC, you argued that Harris County's existing practices didn't violate the constitution, and the Fifth Circuit said they did. Remember your brief in the district court? You said Harris County's current system "far exceeds federal constitutional demands" and that "there is no escaping that the County's bail system is constitutional." You couldn't have been more wrong.

The people on my side know you'll try to settle. But my side shouldn't settle because we'll win everything the more we press on. You're only claiming a win now so that if you settle the people who pay your bills will be fooled into thinking they're not throwing their money away.

Get used to it. The Fifth Circuit opinion found clear violations of EP and procedural DP, and that should worry you because every county in America sets bail like Harris County. It's the beginning of the end of money bail in America, and you can't hide that from your insurance bosses.

You once bragged that having Paul Clement write up your brief was the next best thing to having the Supreme Court itself explaining things. Oops. Maybe not. Money can buy a lot, but it can't buy arguments that work in the federal courts.

Fifth Circuit Affirms Merits Claim in Harris County

ABC spins everything, so I wasn't surprised they'd try to spin the new opinion from the 5th Circuit Court of Appeals.

ABC says, "There's no right to affordable bail!  Bail schedules are constitutional!"

The problem is that the court didn't even rule on those things.  It didn't need to because the Harris County bail practices were so bad that they presented clear constitutional violations without having to examine any broader issue.

Read the opinion carefully. The court said it AFFIRMED plaintiff's claim that Harris County violated the Equal Protection and Due Process Clauses of the Constitution. Does that make sense? ABC said Harris County didn't violate the constitution, the Fifth Circuit said it did. Bang. Done. Let's go to trial if you really think things have really changed.

The rest -- a bit of a deviation from the district court's remedy for the violations -- is what ABC is trying to use to spin it their way.

Now I'll  be honest with you. I don't like the fact that the new remedy allows a judge to -- theoretically -- keep a bailable defendant in jail with money. But that raises substantive due process, excessive bail, and state right to bail issues that weren't even raised in this case. Heck, even people in Texas know you can't detain outside it's own net. They said in on the record down in Houston.

I fully expected to have cases actually go against us occasionally. And if one does, I'll report on it. But this case ain't one of those cases.

Six Things Showing The Bail Industry Doesn't Care About Victims

Besides saying how much they care about the truth (and yet, not telling it -- see my last blog), the bail industry keeps trying to convince people that it cares about victims. Here are six things showing that it doesn't.

1. The bail industry doesn't believe in (and lobbies hard against) risk assessment tools, which are actuarial tools designed to help judges determine how risky a defendant might be to potential victims. Instead, the industry says bail agents can determine risk by looking at a defendant, and apparently fully assess risk through some sort of process known as the "circle of love," which essentially holds that if you don't have the circle, you must be risky. In the end, the bail industry thinks that people who have money are low risk, and people who don't have money are high risk. Otherwise, it says, those defendants would be out of jail, right? Man, you can't argue with that logic.

2. The industry will bail out anyone no matter how risky. As long as you gots the cash, you're out. Again, this is tied to the industry's perverse way of assessing risk, explained above.

3. The industry refuses to supervise for any defendant behavior other than coming to court. That means that if a person is likely to create a new victim, or violate some condition of release designed to keep people from becoming victims, the bail industry wants nothing to do with it. Getting people back to court is all it cares about because that's the only way it makes money. All its talk about public safety is based on a severely strained logical argument that when people miss court, they automatically go out and start committing tons of new crimes, which is just moronic. The essential business model of the bail industry is only designed to deal with court appearance. Public safety simply doesn't fit into that, and whenever states attempt to make bail agents supervise for public safety (often by forcing them to forfeit money for new crimes), the bail industry fights back. Don't believe me? Ask anyone in Pennsylvania.

4. The industry has made it so that in virtually every state in America bail agents can only forfeit money on a commercial bail bond for missing court. Nobody ever loses money if a defendant commits a new crime. This leads to the perverse situation where a dangerous person keeps getting out on bail, committing more crimes, and keeps bailing out, all without any bail agent or insurance company losing any money. Now I fault judges for this revolving door stuff, too, but the laws keeping the industry from losing money for new crimes come courtesy of the national bail insurance companies. I already wrote about Maurice Clemmons, the poster child for this sort of constant bailing out and creating ever more victims here. He was continually bailed out by a for-profit bail bondsman until he finally killed four police officers. If judges keep setting money bonds for dangerous people, bail agents will keep on helping them get out of jail, no matter how many victims it creates. Oh, and by the way, the industry has made it incredibly unlikely that it will ever actually forfeit any money even for court appearance. Check out most state laws that provide loopholes and numerous extensions and exonerations for the bail industry. And when the industry actually does have to forfeit something, it often sues to keep from coughing up the dough. Most state court bail cases deal with bail agents trying to keep from paying a forfeiture.

5. This whole way of doing business causes, as the New Jersey Supreme Court wrote, "problems at both ends of the spectrum." What that Court meant was that the money bail system keeps certain lower and medium risk people in jail and allows certain higher risk people out of jail. When you keep low to medium risk people in jail due to money, it actually makes them higher risk to commit more crimes. And when you allow certain higher risk people out of jail, you naturally run the risk that they will commit more crimes because, well, they're higher risk. More crimes means more victims. That's what the money bail system does.

6. Finally, the industry lies about what it does for victims. If the industry actually cared about victims, there'd be a few fundamental changes the industry would make in order to deal with criminal activity. The fact is that when the rest of the country decided that public safety was a valid constitutional consideration for limiting pretrial freedom in the 1970's and 1980's, the bail industry simply failed to keep up. Telling the truth to victims means telling them that the industry is only in business to make sure the defendant comes to court. Telling victims the truth means telling them that the industry thinks it can determine risk by how much money someone has. Telling victims the truth means telling them that the industry is quite willing to bail out anyone -- no matter how risky -- so long as he or she has money. Telling victims the truth means telling them that the industry doesn't even care if that person continues to commit new crimes. Telling victims the truth means telling them that the industry has for decades championed laws designed to allow high risk defendants to continue to commit crimes without incurring any liability on bail agents.

In short, telling victims the truth means telling them that the money bail system actually creates victims.

Big Blow to Money Bail in Atlanta

I spend all my time working with states -- mostly Supreme Courts and on bills -- so I often forget to report on things happening all over the country in our municipalities. Here's an article about what's happened in Atlanta today. And it all started with a simple letter. 

"Bondsmen argued that victims deserved to have their cases resolved in court." 

Hey, ain't nobody denying that. It's just that everyone figured out that a money bond doesn't really motivate any better than a bunch of other things, like . . . well, like practically everything. And those other things don't cause people to sit in jail. 

Watch out -- this stuff will slip up on you! 

ABC's Big New Mexico Mistake

Today I see ABC posting a story about legislative repeal of the New Mexico bail rules. Look at that! Twenty three shares, and eighteen likes and loves! Can it be?

Guess what? The legislation is a memorial -- defined in New Mexico as a formal expression of legislative desire. That means it can't repeal anything. In fact, that's the way it works in New Mexico with bail. Court rules trump statutes.  So this bill is just a statement by legislators about some rules that the bail industry doesn't like. It's like getting a bill to congratulate your grandmother on her 100th birthday. Nice sentiment, but it won't stop her from turning 101.

Before you believe that ABC is working hard to help repeal these rules, realize that it was ABC that didn't even know New Mexico was a "court rules" state to begin with. That's right. Your bail experts over at ABC didn't know it. That's why it trumpeted the "historic compromise" of the constitutional amendment. It tries now to act like it knew all along, but it didn't.

New Mexico was, quite possibly, the biggest mistake ABC has made to date -- and it made that mistake because it didn't know enough about bail. This is what happens when you let insurance companies run the strategy. So of course ABC will do whatever it can to make it look like it's doing something about New Mexico. But just ask anyone -- they flubbed it.

These rules aren't going anywhere. That's because if you want to lock up dangerous criminals, you can do it easier with the rules than with money.

And, really, you all need to start paying attention. Like, you better get ready for what's going to happen in the 5th Circuit.

The American Bail Coalition and the Truth

I often see posts by ABC talking about the "truth" and the need for everyone to tell it. Of course, that leaves people wondering, "How can we know when something is true or not?"

Well, here's one way: to learn the truth about what an article says, just ask the author!

ABC recently sent a memo to a bunch of people describing an article in a certain way to help the bail bond industry. Later, the actual author of that article sent a letter to those same people refuting the memo and saying, essentially, that ABC is full of it. So what was truth? The memo's take on the article, or the author's own take on the article? I'm going to go out on a limb here and say ABC didn't tell the truth about an article, and the author did.

And it doesn't really matter what I think. What do you suppose the group of people who initially got the memo think? Right. The think that ABC is so oily that it can't tell the truth even when it might be easy to do so. It cites an article and actually gets admonished by the author! How often does that happen?

I once heard a lobbyist for the bail industry say, "I can't vouch for the truth of the statements I make on behalf of others." And man, he was right. These guys can't even vouch for the truth of what they say on their own behalf.

The lobbyists for ABC are hired guns, told to say anything to keep bringing in the money -- even if it means a ton of people have to suffer for it. So we really can't expect the truth. There's too much money at stake.

And so here are the real culprits, the bail insurance companies telling those lobbyists to write about how much they care about the truth -- but not necessarily to tell it.

AIA Surety
American Surety Company
Bankers Surety
Black Diamond Insurance Company
Palmetto Surety Corporation
Sun Surety Insurance Company
Universal Fire and Casualty Insurance Company
Whitecap Surety

And . . . because saying an article says something when it really doesn't say what you say it says is a weasel move . . . you get the weasel pic!

The Definition of Bail

As more and more states get involved in bail reform, it's good to remind everyone once again about the legal and historical definition of the word "bail." If you Google my name and the title of the document "Fundamentals of Bail," you can read a 100 page justification for why the correct legal and historical definition of bail is a process of release. The process is always conditional, by the way, as even the broadest definitional process will always include a condition to return to court.

The purpose of bail is to provide a mechanism to release people pretrial, just as the purpose of "no bail" is to provide a mechanism to detain people. It's technically improper to say that a purpose of bail is to bring people back to court or to make the community safe -- if anything, these are purposes of conditions of bail or release, or limitations on pretrial freedom.

Bail is not money. Money is a sub-condition of the return to court condition. In secured form, money is a condition to precedent to release, which is why it often keeps people in jail. Some places define bail as money, and you can't really blame them because money was the only sub-condition attached to the return to court condition we had for 1,500 years. We defined  "bail" as money in Colorado for decades until we actually studied bail, and then we changed the definition to better (t's not perfect, mind you) reflect the process. Some states, when making changes to their bail laws, have actually replaced the word bail with the word release. Just recently I read a Missouri court rule that says all bailable defendants have a right to release pretrial. That's the correct way to express it.

If you define bail as money, lots of things will be confusing to you. For example, if you say you want to get rid of "bail," meaning money, other people from other states will wonder what in the world you're talking about because they actually have a right to bail in their constitutions. They'll argue with you and you'll be confused as to why. The bail industry has been trying to use this confusion convince people that the purpose of bail reform is to limit or eliminate the constitutional right to bail. That just ain't true.

As another example, you'll  be confused by what the U.S. Supreme Court has said about bail over the years. When the Court equates the "right to bail" with the "right to release" or the "right to freedom before conviction" as it did in 1951, it just won't make sense if you think bail is money.

As yet another example, you might even be confused by the national standards on pretrial release and detention, which, correctly, describe money as a condition and do not equate it in any way to the process of release.

If bail is release, then the right to bail must be . . .  wait for it . . . a right to release! That's true, too, even though a heck of a lot of bailable defendants don't get released.  Usually, when bailable defendants aren't released, we see bail reform. And we're seeing it now, but it took a heck of a long time to figure out what to do about it. That's due to two things most people simply don't know about bail. The first is called "the big change," which relates to a change America made from English law, and you can read about it in my Model Bail Laws paper. The second it what I call the 8th Amendment loophole, which is based on a line of unfortunate cases, which you can read in my Money as a Justice Stakeholder paper. That loophole, by the way, is being eviscerated by the latest wave of cases against money bail that simply avoid any 8th Amendment claim whatsoever.

I'll leave those for another day. For today, a "basic" of bail is to know it's definition. And that definition is this: bail is a process of conditional release.

By the way, if you're relying on ABC to help you with this bail reform movement, you may want to send them my papers. They tried to define bail in a recent court case, and the federal judge said they got it wrong. Not understanding the proper definition of bail doesn't say much for the people representing you in bail-related matters. That's probably the biggest understatement I could ever possibly make, but that's where we are.

A New Low, Even for PBUS

So yesterday PBUS called for the arrest of Governor Dan Malloy, apparently because he's a "supporter of bail reform." It's actually worse than I make it out, because PBUS made this statement after signing a petition wanting him arrested for immigration issues, apparently thinking that any arrest of a bail reforming governor for any reason will somehow help the cause of keeping money and profit alive in bail.

This is so monstrously stupid, so incredibly dangerous, and so completely incomprehensible for a national "professional" association to do, that I have come to doubt whether PBUS knows anything at all about representing a group of people at the national level.

It's not the first time I've heard such things from PBUS, which apparently thinks running a national association is like shooting a reality show. I've known lots of national professional associations, and the worst of them is still a thousand percent better than PBUS.

But this seals it. If I say you aren't worth me even mentioning you anymore, then you're in big trouble. Bail agents, from now on, if you think you have any hope at all in this fight, you better place it with ABC. You won't hear "PBUS" from me any longer. There's simply no reason to believe that PBUS is an effective national organization that has any hope to change the tide of anything. It's become entirely irrelevant except to the extent that it harms your cause.

So long, PBUS. And keep up the great work -- it actually makes my job a lot easier.

NYC Comptroller Calls for Elimination of Commercial Bail

So while ABC has been running around complaining about New Mexico and New Jersey, and while PBUS has been trying to get people to come to Vegas, this happened in New York City.

"This is about right and wrong, and it's about justice."

Hey, that's what I've been saying!

If things go as before, ABC and PBUS will now start ragging personally on the Comptroller and his family. Now that's an effective strategy!

MLK Jr. Day, 2018

"The rich nations must use their vast resources of wealth to develop the underdeveloped, school the unschooled, and feed the unfed. Ultimately a great nation is a compassionate nation. No individual or nation can be great if it does not have a concern for 'the least of these.'"

Martin Luther King, Jr. 


"Can an indigent be denied freedom, where a wealthy man would not, because he does not happen to have enough property to pledge for his freedom?" 

Justice William O. Douglas


"The worship of the golden calf of old has found a new and heartless image in the cult of money and the dictatorship of an economy which is faceless and lacking any truly human goal."

Pope Francis


"If you don't like the wealth-based [justice] system, then you don't like America."

American Bail Coalition

These quotes about wealth are brought to you by the American Bail Coalition, promoters of the American wealth-based justice system, and made up of the following bail insurance companies: 

AIA Surety

American Surety Company

Bankers Surety

Black Diamond Insurance Company

Palmetto Surety Corporation

Sun Surety Insurance Company

Universal Fire and Casualty Insurance Company

Whitecap Surety  

The Bail Industry, Bribery, and the Maryland Senate

Here's the kind of story that makes you warm all over -- complete with bail industry people bribing state senators, undercover FBI agents, and boondoggle parties in Las Vegas.

Nice to know that bills in Maryland -- important bills dealing with pretrial release and detention -- are being discussed on their merits . . . uh, not.

Bail Industry Loses Hard (Again, Again, Again) in New Mexico

I've already written about how the industry lost its motion for preliminary injunction in New Mexico. And I've already written about how the industry had their entire suit dismissed down there, too.

Well, yesterday the district court awarded sanctions against the bail industry attorney who brought the suit, writing that the lawyer added certain legislators and the state bail bond association for an improper purpose -- "namely, for political reasons to express their opposition to lawful bail reforms in the State of New Mexico."

These parties clearly lacked standing, and if you've been reading these posts, you'll remember that I already mentioned that standing was a thing courts expected lawyers to get right before they filed suit. He did other things, but this was a biggie. You can't use a federal court to try to prove a point.

Anyway, this will be a hard pill to swallow, given that literally everything the bail industry does is for political reasons. Somewhere in the opinion, the court notes that the attorney actually sent a letter to the New Mexico Legislative Council Service "promoting" the lawsuit, and offered to appear to the legislature to answer questions. You all should realize that this is the kind of conduct that ABC and PBUS thinks is quite normal. They won't even understand why it was wrong. 

I remember well the giddiness of convention attendees being told of the industry's new strategy to sue those states doing bail reform with these kinds of claims. This is the fallout, and anyone else besides PBUS and ABC would have seen it coming.