Thursday, March 29, 2018

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.


Monday, March 5, 2018

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.