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.
Friday, February 23, 2018
Thursday, February 15, 2018
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.
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.
Saturday, February 10, 2018
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.
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.
Tuesday, February 6, 2018
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!
Friday, February 2, 2018
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.
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.
Thursday, February 1, 2018
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!
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