Fifth Circuit Grants Motion to Dismiss Appeal in Harris County

Yesterday the Fifth Circuit Court of Appeals granted the motion of recently elected Harris County judges to dismiss their appeal of the preliminary injunction won by bail reformers last summer. You can read about it here.

As you recall, that's the earth shattering injunction that -- theoretically -- could change bail practices across the nation simply because Harris County practices look identical to those in virtually all American counties. I've been teaching on the injunction since it came out, and it's reasoning is nearly perfect.

This all means massive changes to misdemeanor bail in Harris County, but the same arguments apply to felonies, and it's just a matter of time before people understand that.

One outgoing judge quoted in the article said, "I remain convinced that fighting against bail reform was a mistake." Not to belabor the point, but isn't this pretty much what I've been writing on this blog for the past 5 years?

Indeed, this particular fight was apparently a nine million dollar mistake.

The article also mentions that the county fired their big shot lawyers. You remember them? They're the ones that the insurance companies said were going to stop bail reform altogether.

Again I call your attention to ABC's declaration recently that the Third Generation of Bail Reform has "imploded." This is about as far from implosion as you can get.

I'll conclude with something I wrote in my very first document about bail -- bail reform is inevitable. And yes, accordingly, it's a mistake to fight it. I think the insurance companies know that (although it's hard to tell what they actually know about bail), but they continue to fight perhaps because they understand the future of release and detention in America has no room for them. Theoretically, at least, there is (or maybe was) room for bail agents, but it looks like all of the fighting is really beginning to backfire on the entire industry.

Winter is coming.

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.

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.

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.

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.

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.

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.

Bail Insurance Companies Insult Connecticut Sentencing Commission

This is becoming a trend. On December 11, bail insurance company lobbyists wrote to the Connecticut Sentencing Commission and said, "As always, we look forward to assisting the Commission in any way we can as you continue your work in the service to the state."

Then, on December 14, the same bail insurance company lobbyists called the Connecticut Sentencing Commission a "kangaroo court" that "suffers from amnesia" and "rubber stamps" policies of their "lame duck" Governor.

Wow. Either something happened in those three days, or it's just more of the schizophrenic babbling of an insurance industry that doesn't quite know what to do. Well, in any event, you all should know that people on the Commission have seen the insults and don't appreciate them.

Hey, insurance dudes, didn't you watch Kingsman?

I mean, it's just bad manners.

ABC Insults California Chief Justice -- Wonders, " Why Aren't We Winning?"

The American Bail Coalition took its turn presenting to the California Detention Workgroup right after me. ABC got its chance to forward its argument. It put together tons of "resources." And it had the list of principles the Chief Justice wanted the Workgroup to consider. Based on the way bail was done in California, it was clear that the Workgroup was looking at ways to improve the process.

What did ABC likely give them? Arguments for keeping everything the same.

And then, when the report comes out and pretty much decides not to keep everything the same, what does ABC do? Insult the Chief Justice.

Yep, for real. In its statement, ABC said the Chief Justice ignored reality, didn't keep her oath of office, was soft on crime, and was playing politics. Nice going ABC. In your zeal to make yourself look good, you've now personally insulted the highest judge in the state of California. You deserve whatever comes from that.

The bail industry has fundamental flaws with its current strategy. As I've said before, this strategy is baked into the fabric of the bail industry's insurance lobbyists, and has existed since the 1960s, when a bail industry representative told attendees at the National Bail Conference basically, "Good luck trying to get rid of us."

So, okay bail agents, keep on sending ABC and the insurance companies all that money. After all, they help pay your losses . . .  oh, wait, they don't. Well, then they hire people with great arguments for keeping the bail industry alive . . .  oh, wait, maybe not. Well, at least they aren't going around insulting judges, the very people who can eliminate your whole industry simply by choosing not to use you . . . oh, wait.

The New Mexico Governor and Bail Reform

I like when Governors get involved with bail reform. I really do. But with the New Mexico Governor's entry into the world of bail reform calling for the repeal of the constitutional bail amendment through her Facebook account, I have four quick things to say.

First, she was for the New Mexico constitutional amendment in September before the election. Given that it passed with 87% of the vote, I'll bet she even voted for it.  Before the election, the bail insurance companies even called it a "historic" compromise. Then they realized that the New Mexico Supreme Court had the ability to radically diminish the use of money at bail. They had serious buyer's remorse when they learned they couldn't just lobby the legislature to keep themselves in business, and I guess they managed to spread that to the Governor.

Second, I don't like when bail reform gets political, because it doesn't need to. But by using the phrase "repeal and replacement" -- perhaps the most political phrase of the 21st Century -- along with faulting judges for "return[ing] criminals back to our neighborhoods" as well as repeating he woefully tired phrase "catch and release," she has obviously bought into the bail industry's political rhetoric of trying to show that any attempt at bail reform is an Obama-era program that somehow hurts public safety (the last desperate cry of defenders of the status quo). Just remember, the bail insurance companies don't care about public safety -- up until the amendment, they were quite happy helping to release any and all dangerous defendants in New Mexico so long as they had some money. Bottom line: Bail reform isn't political if you actually know what bail reform is.

Third, the substance of this issue shows just how little the Governor actually understands. The case she cites, William Wilson, could have been detained under the constitutional amendment. So there's nothing wrong with the amendment in that case.  In the old days, some judge would have given William a money bond, and William would have been out on the streets anyway because a Supreme Court opinion said New Mexico judges couldn't use money to detain. Money won't keep anyone safe, so the constitutional amendment allows judges to detain, without money, dangerous defendants, just like the Governor wanted. And there's nothing you could add to the constitution to do any more than just allow judges the opportunity to detain someone. Laws that have that made persons automatically detainable for various reasons have always been struck as unconstitutional. Even rebuttable presumptions have to be rebuttable.

So if the constitutional amendment did what it was supposed to do -- i.e., allow a judge to detain William -- why wasn't he detained? Well, it could be because of the court rules (which is ABC's beef), but if that's the case, then I suppose that's just tough. In New Mexico, the Supreme Court's rules govern bail, and the legislature can't change them. I suppose that's why she says she wants to repeal and replace the constitutional amendment; the bail insurance companies finally figured out that the amendment wasn't the best thing for their industry after all, and going back to change the constitution is really the only way they can undo it.

But the fact that William wasn't detained could also be due to the fact that no matter what we do, we simply cannot predict individual defendant behavior. Indeed, the more serious and violent crime gets, the less able we are to predict it. We couldn't predict it in the money bail system either, but at least this way New Mexico gets at least a shot at detention for certain "dangerous" defendants.

I imagine if you look hard at the case she cites, you'll see that the judge did the absolute best he or she could do to balance individual freedom with public safety and court appearance. William could've been detained, but something in the case -- including the inability to predict individual risk under any bail system -- obviously led to his release.

So, Governor, respectfully: (1) the amendment isn't really your problem based on what you're saying (it's someone else' problem, but I'll let you figure that out on your own); (2) don't politicize bail reform -- leave that to the insurance companies who don't care one bit about New Mexico residents; and (3) look into the issues before you take a stand on something. If you'd have looked into the constitutional amendment before you said you were for it, you would've not only seen this coming, you would've actually understood why it was inevitable.

Oh, and (4): On Facebook? Really?

American Bail Agent Coalition Part II

One thing I like about Facebook is that if you get up before the guy operating some Facebook page, you can read the comments to a post before they get deleted. I read the comments on the post announcing ABC's upcoming agent conference (they're gone now), and there were a bunch of them, mostly in three categories: (1) I have to choose between yours and and the one by PBUS; (2) you didn't give me enough time (it's only a month away); and (3) how can I know what to do if you don't have an agenda?

So this thing looks a lot like last year, which I wrote about here. Mostly chaotic.

ABC will likely do the same thing this year by trying to convince you that everything is turning around, and that you need to keep fighting everyone. But really, do you think things got better for the for-profit bail industry in America last year? Plus, they'll leave a lot out. For example, they might tell you that they talked DOJ into stopping any funding for pretrial stuff, but guess what? We replaced all that money and a lot more with both conservative and liberal private donors.

By the way, I also followed a link provided by ABC to the "AGENT ONLY Private Page on Facebook" for the ABAC, and guess what? It wasn't exactly private, and there's a whole bunch of people listed as members who are insurance-only people. ABC's afraid of a truly "agent only" page, so it's characteristic of ABC that it would say it's "agent only" when it really isn't.

The conference, the new agent group, the strategy, and even the Facebook pages are what I've come to expect from ABC. Just remember, bail agents, because the solution to the issue of bail in America doesn't involve insurance companies, those companies will fight everyone and everything that represents any change to the status quo. But states don't want the status quo. And until ABC can provide an answer to states who truly want something different, they'll fight the states, turn them against commercial bail, and take you all down with it. 

The American Bail Agent Coalition?

Yep, that’s right. ABC is starting the American Bail Agent Coalition. Remember when I wrote about the new communications guy they hired? Well, this same guy’s job description is also to try to build a bridge between agents and the insurance companies. And for that reason, you should really look at this thing with some hefty skepticism. Because he’s not really a bail agent anymore – he’s now on the insurance payroll.

I’ve been telling agents for years that the insurance companies aren’t doing their agents any favors. And think about it – they never have. Over the decades these companies have made sure agents take all the risk and cover all the losses. As I’ve often said, it’s like the mafia, with agents dropping bags of money on the porches of the insurance companies. The insurance companies are now spending all that agent-earned money to fight everything, because when a company makes money for doing literally nothing, any change to the status quo means losing money (and that money probably isn’t just sitting in a pile waiting to be used; it’s probably going to some pretty cushy insurance executive salaries). But, really, what has all the fighting gotten you so far?  

I’ve checked out the ABAC Facebook page, and you really don’t have to bother. The same guy running the US Bail Reform page is obviously doing this one and ABC’s, and so it’s got all the same posts. Mostly it has the usual – “Look at this dangerous guy RELEASED ON A PINKY PROMISE!” stories.

It’s also got a funny picture that repeats the words “public safety” over and over. Really, the inherent lack of concern over public safety is the one thing doing the most damage to your industry, and saying the words “public safety” over and over won’t change that. Once people look into it and see that you can’t forfeit money for new crimes, they quickly see that whatever the industry says about public safety is disingenuous. ABC, PBUS, ABAC, and all the people behind those other bogus websites and pages out there would gladly release that really dangerous guy if he only had a few hundred bucks, and so it’s clear that the bail industry and public safety aren’t even really a thing. No wonder the ABAC page has to repeat it so much – even it doesn’t believe it.  

Look, the guy that ABC hired used to be an agent, but now he’s an insurance guy being paid insurance money to convince you to agree to the insurance company strategy. And don’t be fooled. PBUS isn’t here for the individual agent, either. If it were, it would’ve figured out a long time ago how to keep from sending the insurance companies all that money so that they can do absolutely nothing. And it would’ve pretty quickly seen that fighting literally everyone on every single issue will only come back to bite you. PBUS may not be “all bail insurance, all the time,” but it’s infested with insurance dudes and it has the bail insurance mentality. I don’t see that changing without some really serious adjustments at the top. 

But now, aligned as they may be, it’s clear that ABC has grown weary of the really whacked out strategy of PBUS, which has brought in some pretty nutty people and super-weird ideas (suing on products liability?). But ABC’s really no better, and it’s all the uninformed fighting that both groups do that will ultimately kill the industry in any event. That’s because neither ABC nor PBUS has any strategy that doesn’t involve fighting to the death. In short, they have no solution for the states. We do.  

Bail agents, I know I said I gave up on you, but I feel compelled to advise you at least one more time. So just remember that there’s no future for bail insurance companies in American pretrial release and detention. There’s no need, because even if we keep money, those really big numbers are going away. The sooner you cut those companies loose and work on your own strategy, the longer you’ll stay in business. Hey, it won’t be easy, but don’t tell me it’s impossible. If you think so, you’ve just been listening to the bail insurance companies too much.  

Bail Industry Loses Hard in New Jersey -- Not Even Close

ABC praises the fact that the federal court in New Jersey found that the plaintiff had standing to sue over bail reform! Woo Hoo! Standing!

All that means is that the person suing is the person who can sue. It's a jurisdictional matter that is so fundamental that most lawyers -- but apparently not ABC's -- make sure they have it before they ever go near the courthouse. The fact that it even came up and seems like it's going to eventually exclude Lexington National means that these lawyers need a nice refresher course on federal jurisdiction.

When it comes to a motion for preliminary injunction, there are four factors that the court balances. I won't bore you all of them because the industry failed to show any of them. Like none. Just like in New Mexico. Zero. Zip.

I will, however, focus a second on the factor that says the party seeking to get the injunction has to show "likelihood of success on the merits." This is the big one, because it gives us a glimpse of the actual legal arguments and how they might eventually stand up if, in fact, the case ever goes to trial.

But as you may have surmised by now, the bail industry didn't show likelihood of success on any legal claim. The Judge wrote: "In summary, neither Holland nor Lexington has shown likelihood of success on the merits of their Eighth Amendment, Fourteenth Amendment, and Fourth Amendment claims. Neither plaintiff has made a showing of a reasonable probability of eventual success on any claim examined above." 

That gives you a pretty good idea of how things will go if this thing ever gets to trial.

Let me quote from the judge: "Finally, if these considerations were a close call -- which the Court does not find them to be -- then the balance would even further tip in favor of denying the injunction because of doubts about Lexington's standing and the arguments favoring Younger abstention."

Bail industry likely to succeed on the merits? Nope. Not even close.

Bail Insurance Companies' "Historic Compromise" In New Mexico

On February 18, 2016, the American Bail Coalition trumpeted its "historic compromise" consisting of new constitutional language for New Mexico's bail provision. Sounded like a big win for the industry, right? But now I read that the bail industry is suing the New Mexico Supreme Court, saying that the new rules have devastated bail agents in that state.

So what happened?

In my mind it's pretty clear. ABC came into New Mexico to throw a wrench into things -- essentially to fight like it always does -- and ended up ticking a lot of people off. It didn't come in to try to figure out what the judges and others wanted. It came in to fight certain language that it thought would affect the for-profit bail companies' bottom line.

On top of that, I'm convinced that ABC didn't know that New Mexico is what I call a "court rules" state, which means that the bail laws there are implemented by court rule and not by statute. That's important, because you can't lobby a Supreme Court. If I were the industry's lobbyist, and if I decided (albeit wrongly) to fight everyone, I certainly would never have let that language make it through. I think ABC figured it would take care of everything later in the legislature. Problem is, that isn't the way it works in New Mexico.

This complete lack of understanding of bail by the bail industry continues today, In Harris County, the federal judge dropped a footnote saying that ABC didn't even know what the word "bail" meant. In the class action in New Mexico, the state bail association is making the uninformed and bogus claim that somehow the right to bail is a right to having a money bond, a claim that goes against the history, the law, and the pretrial research. I know of constitutional claims that might apply to a new preventive detention provision, but apparently the bail industry itself doesn't know what those are.

The commercial bail industry's strategy to fight everything, combined with a complete lack of understanding of the thing that they are fighting about, will mean the end of the industry in New Mexico.

Not the rules.

Bail Insurance Lobbyist Representing You!

Here's a video worth watching.

It shows just how bad the bail insurance companies' strategy to "fight everything" is doing on the ground in places that are actually trying to change. Scroll to about the 3:24:15 mark and see the ex-head of ABC, a bail agent, and some dude from New Jersey, all talking about how nobody should change anything.

The reaction from the City of Philadelphia Special Committee on Criminal Justice Reform is harsh, and shows just how ineffective the insurance lobbyists have become. Ineffective to the point where it gradually became clear that the Special Committee was personally offended by the panel.

I feel bad for the agent -- it's clear that this whole thing was orchestrated by the ex-ABC guy, and the agent was just trying to say what the ABC guy told him to say. But anytime you use the terms "circle of love," "accountability," and other insurance coined phrases, you should really think twice. I mean, do you think taking someone's mother's car is in any way a part of a "circle of love"? And, as I've said many times before, "accountability" is a punishment term, not a bail term. But mostly, people just don't want to hear how great everything is when they've already decided to reform it.

So take a step back and you'll see the overall flaw in the insurance strategy. The City of Philadelphia sets up a Committee seeking answers about how to change, not whether to change. The bail insurance companies respond by saying, "Don't change."

How does that go over? Well, watch and see.

Bail Insurance Company “Experts” in Harris County

In my last blog, I showed how the bail insurance companies didn’t even know what the word “bail” meant. That’s a big deal – the amicus in which they screwed up in Houston was written for the case in Georgia by some big shot appellate lawyer. They paid him big money – so they got a big mistake.

Now let’s see how the bail insurance companies fared with their “expert” witnesses in Harris County. They had two. The first is pretty easy to dismiss. The court found that even though he might have known a bit about the history of the Harris County Court back when he worked there, he’d been retired for six years and so his testimony was given “substantially less weight” than contradictory testimony.

The second “expert” really requires a bit of an explanation, but I’ll save that explanation just in case the bail insurance dudes decide (unwisely) to use him again. Suffice it to say that this second guy is a bail insurance lackey (he’s been one since 2010) apparently with an incredible bias toward making sure those companies look good at any cost. But don’t trust me – just read what the court said about him. As you do, remember that when we legal types say something “isn’t credible,” it means we don’t believe it.

“His method for arriving at that number is not clear . . . [therefore, the other expert’s] calculation . . . is the more reliable figure.”

“[His] criticism is not credible . . . [and is] particularly weak given his own analytical shortcomings in studying Harris County’s data.”

“The defendants dispute these numbers, but their expert . . . provided no alternative figures.”

“The defendant’s expert . . . attempted a different method of counting. His study is critically flawed in at least two ways.”

“An even more basic flaw in [his] study was his exclusion of all misdemeanor defendants who had ‘moderate’ or ‘high’ risk scores from the population he considered. In sum, [he] excluded indigent defendants from his survey to conclude that, of the misdemeanor defendants surveyed, none was detained because of indigence. [This] conclusion is not entitled to any weight.”

“These critical flaws undermine his credibility and diminishes the court’s confidence in the reliability of the opinions he expressed, whether deriving from his own research or criticizing the analytic methods and conclusions of others.”

Ouch.

“[His] attempt to salvage his report is not successful.”  

“[His] decision to disaggregate his findings by gender and provide no overall failure rates is puzzling, to say the least. His decision to disaggregate his findings had the effect of inflating the slight difference in failure rates . . . and made it appear greater than the overall rate of failure, which [he] did not provide.”

“His [Dallas Study] is entitled to substantially less weight than the published, peer-reviewed articles in the record.”

Wow. Enough already. Do you get it? He doesn’t know what he’s talking about when he talks about other research, and he doesn’t know what he’s talking about when he’s talking about his own research. And that stuff about inflating the rates? That’s his incredible bias to try to find some conclusion that supports the insurance companies.

I can’t blame this so-called expert for falling under the spell of the bail insurance companies. They offer people boatloads of money and fame – a weird kind of bail fame that comes from having your work immediately thrust into the national spotlight. Other people fall for that, too.  The problem is that now that he’s been ridiculed in court, the bail insurance companies will just go hunt for some other patsy willing to say anything for all that money and bail fame.  

Once again, bail agents, you need to unshackle yourselves from the bail insurance companies. Yeah, they got the county to appeal, but that’s just to buy time to settle. The appeal on this single motion (this is not the trial – it’s just an incredibly huge motion hearing before the trial) will cost a ton more money in just legal fees, and then, even if they win, they’ll just end up in trial with the same judge, the same evidence, and the same expert.

You bail agents in America have to consider removing that word “agent” from your title. You’ve got to find someone who understands how the insurance companies’ protracted “fight everything” strategy won’t work – especially when what they did in Harris County is the best they can do. When you find that person, tell him or her that you want to remain in business, but that you know that might mean changing your business practices. The insurance companies are on their way out in American bail. Your choice is between letting them go down on their own, or letting them take you down with them. 

ABC Doesn't Even Know What Bail Is

So I'm perusing the Harris County memorandum and opinion in the federal case, and I see a footnote in which the court says, "Texas's scheme points up a flaw in the amicus brief filed by the American Bail Coalition [and others]. The brief consistently and ahistorically assumes that references to 'bail' always mean a secured money bail with a monetary payment required up front as a condition of release." That's "a-historically," as in, going against or ignorant of history.

Thats 's a pretty big flaw, because it means the bail insurance companies -- the group developing the strategy to keep money bail in America -- doesn't even know what bail is. This flaw is the basis for a lot of the bail insurance companies' flawed legal claims, by the way, and it's the same flaw advanced by the big time law firm they've hired to litigate these cases.

I've written about this many times before, and they've got no excuse because everything the court said about bail -- what it is and what it isn't -- has been spelled out in my papers. But they refuse to read my papers. I'll let you decide whether that's wise. As the federal court in Harris County said, bail is a mechanism of release. As my papers say, bail is a process of release. We have a thing called bail to release people, just as we have a thing called "no bail" to provide a way to detain them. It's really pretty simple.

Bail agents, the insurance companies are not only losing this thing for you, they're losing it without even bothering to figure out what they're even talking about.

One day, as you're turning off the lights one final time, you'll probably think to yourself, "I suppose before we just followed along with the insurance companies' lost cause, we should've  at least checked to see if they could correctly define the word bail."

Just in case, in my next blog I'll define the words "American" and "Coalition."

Bail Insurance "Accountability"

Here's an example of bail insurance "accountability" in El Paso County, Colorado.

Defendant: Gustavo Marquez

Case #1 -- 17CR1150, felony assault, kidnapping, child abuse. No risk assessment, no supervision, released on $5,000 surety bond with no further conditions.

Case #2 -- 17CR1586, while on release for case # 1, arrested for double homicide (victims = 15-year-old-boy and 16-year-old girl). Now being held without bail.

The kicker? Nobody forfeited the $5000.

Oops

One of the major bail insurance companies recently posted an article on Facebook from the Washington Post, which was titled, "In D.C. The Federal Government Gives Released Criminals Many Chances to Fail."

Then, commenting on the story, the insurance company said:

The Public Sector Utopian Model of Washington D.C. is the best pretrial program ever 
conceived . . . IF YOU ARE A CRIMINAL! Check out this new article that highlights the many failures of this so called perfect model program. It is time for the rest of the country (New Jersey, California, Texas, Maryland) to call out the lies of the public sector release advocates and shine a light on what they are truly selling us . . . LESS ACCOUNTABILITY, INCREASED COSTS, MORE CRIME AND THE COMPLETE BREAKDOWN OF THE INTEGRITY OF OUR CRIMINAL JUSTICE SYSTEM

The only problem?

Well, the only problem is that the whole article was about sentencing. You know, not bail. Post-conviction. Not pretrial. CSOSA, not PSA. We don't need sock puppets, do we?

I've said this many times before. The insurance companies don't really even understand bail. And yet bail agents everywhere are relying on these companies to design and implement a strategy to get them through this generation of reform.

The insurance companies pay the lobbyists and give them their orders. Right now, their orders are to fight to keep the status quo, which has no plan for bail agent involvement in any future system of release and detention. So unless bail agents figure out a way to separate themselves from the insurance companies, I predict weeping and gnashing of teeth.