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 Industry Loses Hard (Again) In New Mexico

Here's a link to the press release reporting that the judge dismissed the federal lawsuit in New Mexico brought by the bail industry. It's done. Oh, wait, first comes the appeal, and then that dismissal, and then it'll be done. I forgot that they like to spend tons of money appealing everything.

I'm not going to rub anything in because this dismissal was a given. I already wrote about the industry losing a motion for preliminary injunction, and about a similar suit in New Jersey getting hammered and hanging on by a thread.

Nevertheless, I will mention, once again, that this shows that the strategy created and advanced by ABC, PBUS, and the insurance companies is seriously flawed.

The Bail Industry's New Mexico Problem

So now, after New Jersey, New Mexico is seeing the brunt of attacks against its criminal justice system by the bail industry. You've probably already seen them -- posts on various bogus websites saying, "Look At This Dangerous Guy -- FREE TO GO Under Bail Reform." They attack Chief Justice Daniels. They attack virtually anyone they can find who played any part in diminishing the industry's profits. And then the industry uses the same posts in other states to spread fear of reforming the money bail system in America.

The bail industry even got the Governor of New Mexico to declare that the state should "repeal and replace" the recent constitutional amendment, which passed with nearly 90% of the vote. By the way, last I read the legislature asked the Governor to come over and tell it what was wrong with the one that overwhelmingly passed and to provide her alternative, and she didn't go. I can guess why. Clearly, it's because she didn't know the answer on her own and the bail industry didn't know what to tell her.

There are lots of reasons why all this activity in New Mexico by the for profit bail industry is dumb. For one, most of the guys they list as "dangerous" would've been out under the old money-bail system, and if any of them committed a new crime on release, nobody would lose any money. The amendment was designed to allow judges to detain truly dangerous persons without bail, a concept the bail industry still hasn't quite grasped because one day it's for such a thing and the next day it isn't.

But I want to focus on how the American Bail Coalition (which takes its orders from the bail insurance companies) did the biggest flip flop in the history of bail in New Mexico, and ask why the bail agents are so forgiving of ABC and the insurance companies when they make these giant errors.

Back when the new constitutional bail amendment was written, ABC took credit for it, calling it a "historic compromise." High fives for the bail industry! You can read about how great they thought the amendment was back then right here.

But just last week, ABC called for a new constitutional amendment. Why? Well, because ABC didn't really understand New Mexico, New Mexico bail law, and, in fact, anything about writing constitutional amendments. Anyone paying attention could see that despite what ABC did to the amendment to reach its "historic compromise," it was likely going to spell the beginning of the end of money bail in that state. I knew it. A state legislator knew it (I wrote about that here). I'm pretty sure the bail agents knew it, too.

But ABC and the insurance companies didn't know it. And so, in this most recent post, ABC tries to downplay its previous role (ABC says it only wrote an op ed, but it really helped craft the constitutional language itself), and then spends most of its time personally attacking my friend, Justice Daniels. In fact, this is about the only thing that ABC and the insurance companies seem good at. Fight like crazy, lose, and then attack everyone personally. It happened in New Jersey. It happened in California. It's happening in New Mexico. The problem is that ABC and the insurance companies never take time to recognize a trend created by their laser focus on fighting everyone combined with their inability to even understand bail. 

It reminds me of when ABC wrote a brief in the Harris County case. Really, that should have been some crowning moment for ABC. A chance to really explain to the court what bail is and how to fix it. Instead, the judge dropped a footnote in its opinion and said ABC didn't really even know what the word "bail" meant. I wrote about that here.

So, in the end, this is all that ABC and the insurance companies do. They fight everyone and everything (a strategic problem all its own), but they don't really know what they're saying when they're fighting. They throw up arguments just to see what sticks. They change their stance on fundamental legal principles. Heck, they even change their stance on the very purpose of bail and the commercial surety industry itself. Talk about selling out.

When history records what happened to commercial bail in the third generation of bail reform, a footnote will read that the bail industry tried to mount a defense, but its inability of those leading that defense to understand the consequences of a strategy based on fighting everything, combined with its ignorance of its own industry, caused it to collapse.

The bail industry's New Mexico problem is that it shows all of this in full, odorous bloom.

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?

Bail Industry Loses Hard in New Mexico

ABC and PBUS decided on a new strategy lately -- suing the states doing bail reform. It must have seemed like a really good idea at the big PBUS meeting, right?

Yesterday, the judge issued an order denying the industry's request for preliminary injunction in the New Mexico case. And man, that judge denied it hard.

Each substantive claim by the industry is quickly and succinctly knocked down -- sometimes in only one or two double-spaced paragraphs. That's an omen of things to come if and when the industry decides to go to trial. That is, unless you all think the same substantive claim will somehow become rational or legally meritorious between now and then.

Keep up the great work ABC and PBUS! The more you sue the people doing bail reform, the less likely it is that anyone else will even consider including you in any solution.

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.

The American Bail Coalition is Officially Lost

You may remember when ABC first blogged about its work in New Mexico. It said, "ABC Brokers Historic Bail Reform Compromise in New Mexico" by crafting language that "is good for the State of New Mexico" Go ahead, read all about it here.

Cut to today, when ABC posts a story in which a New Mexico legislator says that she won't support the amendment and thinks that "it will have a devastating effect on New Mexico's Bail Industry."

I can now say without any doubt that ABC doesn't know what it's doing. Or maybe they thought we'd all forget. What are they saying by posting today's story -- did ABC broker a historic compromise or did they just muck everything up? Hard to say since ABC seems to be saying both things at the same time.

Another question for the ABC conference next month: "When is ABC going to learn something about bail?" But, really, I've pointed out stuff like this for a long time, so my question is more for you bail agents: "When are you going to figure out that ABC is officially lost?"

Bail Agents, This One’s For You

Well, I’ll get right to it. In my last post – which I thought might be my last post – I said I might come back if somebody made me mad. And guess what? Sure enough, somebody did.

No doubt you can guess who. Yes, that’s right, it was a bail insurance company lobbyist, who insisted on going down to New Mexico and trying to trash a project I was involved with years ago here in Colorado. It didn’t work, of course, because the people in New Mexico called me and a couple of others here in Colorado and we told them the truth, something that the insurance lobbyist probably had a hard time conveying in his presentation. 

Bottom line is that I’m coming back, and I’m going to go at this thing full time. Bail agents, you should realize by now that the insurance companies are doing you no favors anywhere in America. By rehashing the same tired and discredited arguments and by misrepresenting the law and the research to keep the status quo, the insurance companies are – perhaps unintentionally – sealing your fate. 

Here in Colorado, everyone can point to the single event that triggered all of us getting together to change bail. It was when an insurance company lobbyist came in from out of town and did what he was paid to do – keep the money flowing to the insurance companies. The problem is that by doing so, he turned people against everyone involved in commercial bail, including you bail agents. The insurance companies are doing the exact same thing today in other American states, and unless those companies radically change their tactics, you can bet that bail agents simply will not exist in any form in America in the next 10 years.

I used to think that the bail insurance companies might ultimately see the real issues and change their strategy to actually help you agents, but now I see that they are too consumed with the free money (that you all give to them) to do you any good. The future of bail and no bail in America simply does not include the kinds of high dollar amounts that seemingly require insurance company backing. And because they don’t belong in any pretrial future that I can think of, insurance companies will continue to argue to keep things the same. By doing so, however, they’ll continue to lose. And as they lose, they’ll most definitely take you down with them.

As a bail agent, I know that you rightfully take some pride (as we all do in pretrial justice) in knowing that you are helping to uphold the rights embodied in both the states’ and the federal constitution. To stay in such a noble pursuit – to be able to feel the same sense of constitutional pride for the next 100 years – you simply must see the insurance companies for what they are and what they are not. Simply put, they are the method of your demise. They are not your friends. 

Warnings from the Appellate Courts

I don't have much time to devote to two really significant cases in bail, but let me start with the fact that it's pretty incredible to have two really significant cases in bail in such a short time. We're in that part of the third generation of bail reform where we're seeing changes, and big-time cases and opinions are part of those changes. They're only going to keep coming, and so I offer up this post as a couple of warnings from the appellate courts.

The first case is the Valenzuela case out of the Ninth Circuit. In that case, the en banc court struck down Arizona's Proposition 100, which amended the state constitution to preclude bail for certain felony offenses if the person charged was deemed to be in the country illegally. There's a lot of political drama concerning the immigration issue in this case, and frankly I'm not sure how it will all flesh out, but I only want to highlight one important thing -- in this opinion, the Ninth Circuit basically held up Arizona's state bail laws and practices against the U.S. Supreme Court's opinion in United States v. Salerno and found those laws and practices lacking. This is a big deal, as I -- along with a number of others concerned with how bail has evolved in America -- have been preaching that the states have been ignoring the lessons of Salerno ever since it was issued. Accordingly, this is the first warning: if appellate courts begin to hold up state bail laws or practices -- such as blanket denials of bail without due process or detaining bailable defendants by using money -- against Salerno, then we're going to see a bunch of states having to change those laws and practices based on federal constitutional law.

The second case is State v. Brown, in which the New Mexico Supreme Court reversed a trial court's decision to keep an unattainable financial condition of bond ($250,000) intact, and ordering the release of the defendant on non-monetary conditions. The number of fascinating quotes, cites, and other interesting parts of this opinion are too numerous to list, but a smattering include:equating the term "bail" to pretrial release, the only definition that can be defended legally and historically; citing to Duker, De Haas, Carbone, Freed & Wald, Beeley, Goldfarb, Thomas, and Foote to bolster the court's historical analysis; citing to Devine to explain how all other countries have avoided commercial sureties; citing to Pannel's "keys to the jail" quote; explaining the Manhattan Bail Project; citing to various important bail researchers, including Cohen & Reaves, VanNostrand, Goldkamp, Bechtel, Clark, Jones, & Levin; citing the American Bar Association Standards; explaining how analyzing bail in New Mexico starts with a determination of "bail" and "no bail;" quoting Stack v. Boyle for the requirement of individualization at bail; rejecting so-called "standard bonds;" quoting Bandy to say that setting a financial condition to detain would be unconstitutional; and quoting Justice Jackson's concurrence in Stack to remind judges that we must embrace the risk that is inherent in bail as the price of our system of justice. You really have to read this one to believe it, and especially the last paragraph, in which the court cautions judges to "faithfully honor the rule of law," whatever the consequences.

Brown signals a clear break from the kinds of bail opinions we've grown accustomed to in America. Here we have a state supreme court opinion that uses equal parts of bail’s history, the law, the pretrial research, and the national best-practice pretrial standards to articulate how, at least in New Mexico, setting bail arbitrarily, irrationally, or unfairly will no longer be tolerated. I expect more opinions like Brown in this generation of pretrial reform. And thus, this is the second warning: states that have grown averse to taking the risks that are inherent in America’s system of bail, or accustomed to bad pretrial practices like using “standard bail amounts,” setting money to protect public safety, setting money amounts with a purpose to detain bailable defendants, and basing the bail decision on single factor such as top charge, will likely be forced to change.

As a final point, consider this: in Brown, the New Mexico Supreme Court did not send the case back to have the trial court set a different or a lower amount of money. In the end, the court ordered the defendant's release on no money whatsoever. It's a subtle point, but worth noting, that if a court, like this court, understands the fundamentals of bail, there won't be much room left for money.

I'll stick the two cases on my website, which you can find at www.clebp.org.