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.