ACLU/Color of Change Report on Bail Insurance Companies

We interrupt this blog that rips on bail insurance companies to provide this link to a new report ripping on bail insurance companies. It isn't hard to do -- once you can get past the cloak of secrecy that's a hallmark of all nasty businesses. But this report is great, and the beginning of the end of bail insurance activity in criminal justice.

Some of the highlights -- eliminate the bail industry, and until then investigate and better regulate the companies behind it. And, get this, a plea for some of the larger corporations to act ethically by cutting all ties to the bail industry.

As usual, it's the insurance companies that are causing all the chaos. Bail agents, you gotta cut loose!

Happy reading!

Bail Insurance Companies Care Little About Bail

Lately I’ve been spending a lot of effort on some big-time bail cases – one recent one even involved filing a brief in the United States Supreme Court. But can you guess who’s not involved in any of these cases? That’s right, the bail insurance companies.

 Even though these cases deal with pretrial release (bail) and detention (no bail) – how to do it, what makes it constitutional, etc., – the bail insurance companies either don’t know about them or they don’t care because technically the cases don’t involve directly taking away their money.

 That’s a mistake, though, because a bunch of us know that what the Supreme Court says about detention for, say, immigration cases, will likely foreshadow a future ruling on money bail. 

The insurance companies are winging it. While they’re spending all their time and effort on motions hearings, some really big stuff is happening that will affect their industry more than they think.
 

If you’re in the bail industry, but you don’t care enough about bail apparently even to know about these other cases, what in the world are you doing?

Bail Insurance Lobbyist Makes History!

 

I never thought it would happen. After years – no, decades – of claiming that there are no people in jail due to lack of money, a bail insurance lobbyist said, “It does happen, so I think we need to admit that.” Historic.

Normally, such admirable truth telling would prompt a bit of praise, but in this case I just can’t do it. That’s because I know how long the bail insurance companies have claimed that there are no poor people in jail. In fact, when it comes to poor people in jail, they’ve vehemently denied it, called it a myth, and said it’s a conspiracy among bail reformers to try to put them out of business. And because of that, poor people remained in jail due to money, which messed up their lives, their families’ lives, and even the lives of the general public, who had to deal with the consequences of unnecessary detention that the insurance companies said didn’t exist.

So now we know just how long a bail insurance company will make obviously false claims just so it can make money. A really long time.

Which makes me wonder. How long will they keep spewing all their other false and equally ludicrous claims? I mean, the “no poor people in jail” claim was obviously ridiculous and harmful, but the insurance lobbyists cited studies, gave presentations, and even provided testimony trying to get people to believe it. Is that it? Do we have to wait ten or twenty years on every bogus claim until they finally realize that nobody believes it and they have to give a retraction? Don’t they realize that their ruining people’s lives? This isn’t like other businesses, you know. Lying about bail has real consequences.

And now they think they should start a bail fund. Wow (please visualize me doing a double take or spewing milk out of my nose). I mean, WOW! You do realize, don’t you insurance dudes, that bail agents everywhere have had the ability to start a bail fund for the last 100 years. It’s called waiving the fee.  

The insurance lobbyist said, “We can do some good if we put our mind to it,” but the bail insurance companies are beyond just doing good to make up for the disastrous, decades-long lobbying effort designed to keep money in the system. I mean, where was this realization that poor people are in jail when they were trumpeting their “big victory” in Georgia through a new law forcing judges to set money bail?  

Bail insurance companies, if you want to do some good, quit acting like you’re interested in pretrial freedom while you argue that there are no nonviolent criminals and that everyone in jail belongs there. Quit acting like you care about release while you push a system that historically keeps people in jail. Quit saying you care about defendants while you make fun of how they look in their mugshots or sing songs about how idiotic they are. And quit paying lobbyists to say any ridiculous thing just to keep the money rolling in.

Just quit.

Do America a favor and just quit.

Fundamental Cracks in the Foundation?

The American Bail Coalition put out its midyear report on all the “failing efforts to eliminate the constitutional right to bail.” I suppose if they reported on all the “successful efforts,” it’d be longer and harder to write. But that’s why I’m here. To correct the record!

First of all, though, nobody’s trying to eliminate the constitutional right to bail. The right to bail isn’t a right to money, and the insurance companies know that. As the U.S. Supreme Court said, it’s a right to release – a right to “freedom before conviction.” And it just so happens that money gets in the way of release and freedom. If anything, eliminating money greatly enlarges the right to bail. We’re not eliminating the right to bail. We’re making it meaningful.

I’m not going to go point-by-point through their whole report and show how these insurance lobbyists mislead all the people they’re hoping to convince are on the right side. For example, if you really liked money bail, and if ABC told you the whole story behind New Mexico, you’d be pretty concerned. Or the federal money bail act – did you really think something like that would pass in an election year by this Congress? Goodness gracious, if they actually paid a lobbyist to work against that bill, they’re dimmer than I thought.

Instead, I’m just going to list all the states that are making progress reforming the bail process that ABC didn’t even mention. Here they are:

Alaska, Oregon, Nevada, California, Arizona, Wyoming (yes, I’ve talked to them), Colorado, Pennsylvania, Virginia, Delaware, South Dakota (albeit minor stuff), Wisconsin, Kansas, Nebraska, Texas (watch out for Texas), Missouri, Kentucky, Illinois (I know a couple of big time bail reformers out there right now), Ohio, Indiana, North Carolina, Maine, Massachusetts, Hawaii (just talked to them, too), West Virginia, Minnesota, and Alabama (well, one county, but you also have to count the lawsuits). Oh, and don’t forget Guam! Mighty Guam is leading the charge.

In fact, I only counted 15 states that aren’t doing any bail reform, and those are just the fifteen I personally don’t know anything about. Ask PJI, or NIC, or a few other groups, and they’ll probably add a few to my “bail reformer” list. Oh, yeah, and you probably have to add a few more of the 15 to that list simply because they’re getting sued. That sort of thing leads to bail reform, too.

My dad was a lobbyist, and my brother is a lobbyist, so I know that lobbyists have to periodically make reports showing a certain amount of success. I expect it. But the time is running out for these particular bail insurance lobbyists to help their bail agents make any kind of transition into the brave new world of pretrial supervision.

For over 100 years, the “foundation” of American bail has been secured money bonds. But all of that is changing. There are fundamental cracks in the foundation, all right, but they aren’t the ones the insurance lobbyists want you to focus on. 

Bail Insurance Lobbyists Mislead Bail Insurance Companies?

I’ve spent a good many words explaining how the bail insurance lobbyists mislead jurisdictions, and how those misrepresentations hurt bail agents across America. Turns out I think they’re misleading the very companies who pay them, too.  

I started figuring this out a few months ago when an insurance lobbyist told a bunch of people in New Mexico that Jefferson County, Colorado (where I live), was being touted as some sort of pretrial success story. Then the lobbyist showed them some numbers trying to convince them that the way judges are setting bail in Jefferson County today has led to some bad outcomes. As often happens in other places when these lobbyists speak, the people in New Mexico asked me to explain it all, and so I told them the truth. The truth is that nobody is calling Jefferson County, Colorado, a pretrial success story. And if there are any bad outcomes today, it’s because of the lack of success when it comes to how Jefferson County continues to use money at bail.    

I should know, because I’m one of the three people who helped design the so-called Jefferson County Bail Project, which was basically the name we gave to a big project designed simply to try to do bail differently. But to understand everything, you need to know that the bail project was really made up of two parts. The first part – a fourteen week experiment to show that if judges set less secured money bonds the sky wouldn’t fall – was a success. The sky didn’t fall, proving, at least partially and during the fourteen weeks, that we didn’t need as much money as we thought we needed to do release and detention. In fact, we were able to release more people and keep the same court appearance rates and public safety rates by using less secured money bonds. There were other successes associated with the initial attempt to do things differently, such as better bail education, more purposeful release and detention decisions, etc., but the 14 week experiment was the main thing.   

The second part, though – the part where Jefferson County was supposed to actually implement the things they learned from the 14 week experiment – was a total failure when it came to deciding how to use money. In fact, I actually published a document that said the county failed to implement what it had learned. And yes, I actually used the word “failure,” which should have made it pretty clear.

Now don’t get me wrong, there were some things Jefferson County did permanently that were and still are successes; for example, it has defense attorneys at first advisements now, and it got rid of their bail schedule. But overall, when it came to actually implementing a process that would move away from using cash or surety bonds, Jefferson County simply didn’t do it. So when the bail lobbyist went to New Mexico with data showing that outcomes are somehow bad now, years later, my response to the people in New Mexico was, “Of course they’re bad now, because nobody ever implemented any of the money improvements that we tested. After the experiment, judges went right back to using cash and surety bonds just like before.”

And then, just about a week or so ago, a bail insurance company – not the lobbyist hired by the company, but the company itself – said the same thing. It said, “Jefferson County is being touted as a pretrial success story.” And I really started wondering, “Who in the world is doing all this touting?” It certainly isn’t me. It isn’t the two other people who helped design the project. And I’m pretty sure it isn’t anyone else in Jefferson County. I mean, really, there is absolutely nobody in America saying Jefferson County is some sort of success story when it comes to pretrial release and detention.

But then it dawned on me. The main bail insurance lobbyist is from Colorado, and when he interviewed for his new job, he must have told the insurance companies that the reason the three of us who designed the bail project are all doing national pretrial work is because people think the bail project was great. He must have said, “Hey, people are touting Jefferson County, but I’m from Colorado and I can find out the real story and prove that the bail project shouldn't be touted at all.” The problem is that he apparently never even read our published documents. If he had, he would have known that I, myself, said that it failed.

So here’s this lobbyist telling the companies that pay his salary that people are “touting” the Jefferson County bail project as some success – when they aren’t – just so he can justify foraging through some jail stats to try to shoot it down. Man, talk about messed up. I mean, when you realize that Jefferson County actually failed to implement, then the very numbers the lobbyist uses to try to trash the project actually hurt the industry. Don’t you see? I would expect the current numbers to be bad today because judges in Jefferson County kept on using cash and surety bonds.

This is just one more example of a bail insurance lobbyist saying whatever comes into his brain without even gathering the facts. Once again, bail agents, these guys aren’t doing you any favors.  

Bail Insurance Companies Mislead the American Bar Association

The current American Bar Association Journal has a story about bail reform -- you can find it here.

In it, the bail insurance company lobbyist tries to defend the money bail system by pointing to a 2004 Journal of Law and Economics study saying release on surety bonds was better than release on “own” or “personal” recognizance. That’s a problem, and it’s misleading, but it’s something those companies do despite knowing it’s misleading, so I’ll try to make this really clear.

That study was produced using the State Court Processing Statistics (SCPS). And, essentially, the authors of the study used those statistics to essentially say that release on a surety bond was superior to release in other ways. The bail insurance companies glommed onto this study as one of their “go-to” documents that, according to the bail insurance companies, proves surety bonds are great. You can tell the insurance companies still really like it because they’ve been touting it around the country for years, most recently in the ABA Journal article, above.

The problem (and this is a big problem) is that the Bureau of Justice Statistics – the group that keeps the very data that the study used – said in a formal data advisory that you can’t use their data to make “evaluative statements” about the effectiveness of one or other form of release – i.e., the exact thing that the study did. In fact, the data advisory says, “any evaluative statement about the effectiveness of a particular program in preventing pretrial misconduct based on SCPS is misleading.” If you read the data advisory – which, by the way, was only put out because of numerous misleading bail insurance company claims using mostly this particular study, you’ll see that there’s no way you can really compare the data to make any statement about which release type is best.

I don’t blame the authors of the study. They wrote it before the data advisory came out and they were economists, not criminal justice people. But I do blame the bail insurance companies for continuing to mislead people by citing to the study because they know exactly what they’re doing. In fact, once the data advisory came out, the bail insurance actually went to BJS to complain: “How unfair,” they cried, “to keep us from using this study!” But then everything went quiet, and about six months later they just started citing to the study again. Apparently, the bail insurance companies have decided that the people they give it to are a bunch of idiots, and that there’s really nothing to lose by citing to discredited research.

This should concern all Americans, but it should especially concern bail agents. That’s because every time the bail insurance companies cite to this study, I (or any of about 100 others who know the story) go in and explain everything to the people they cited it to. Once I do, the people who were misled get really peeved – not only with the bail insurance companies, but also with bail agents. They get peeved because the insurance companies are misleading jurisdictions on purpose to make money. And the anger over that leads to anger about everyone associated with the commercial bail system.

I’ve written about this a bunch, so it’s clear the insurance companies don’t care what I say. Or maybe they do. We’ll see.

By the way, this knowing misrepresentation in the American Bar Association Journal was brought to you by the American Bail Coalition, whose members include:

Accredited Surety and Casualty Company

AIA Surety

American Surety Company

Bankers Surety

Black Diamond Insurance Company

Lexington National Insurance Corporation

Sun Surety Insurance Company

Universal Fire and Casualty Insurance Company

Whitecap Surety