A Bad Couple of Days for the Bail Insurance Companies

Yeah, it's been a bad couple of days for the bail insurance companies.

First, they lost that big case in the Third Circuit -- you know, the one they convinced you they'd win because they spent all that money on some big shot lawyer. You know, the insurance companies keep trying to convince courts that they know what "bail" and the "right to bail" are, but they keep getting told they're wrong. I find it really interesting that bail insurance companies and their lawyers don't know what those words mean.

Then, yesterday, the Arnold Foundation mass-released the PSA to all comers. I know the bail industry doesn't know anything about all this, but take my word for it, it ain't good for the bail industry. I never could figure out why insurance companies would base everything they do on actuarial tools except bail. Oh well, all I know is the bail insurance companies don't like them, and now they'll be everywhere. Plus, wait until you see the training behind them! No more money.

Then, today, there's this in the National Review. Seems like people in America want to change the way we do bail and no bail.

Yep, things are definitely changing. Bail reform is low hanging fruit.

PBUS in Atlanta!

The insurance-infested PBUS is sending their fearless leader to stand bravely on the courthouse steps and then watch oral argument in the big 11th Circuit case in Georgia!

Time for a gut check:

1. Standing on the courthouse steps and watching oral argument at a federal court of appeals is absolutely ineffectual. I know, because I used to work in a federal court of appeals writing opinions. The insurance companies know it's dumb, but they're telling you bail agents they're going there so you'll think they're actually doing something. This isn't like some local county court, where you can sit there, frown, take notes, and then oppose the judge at the next election.

2. You'll win or lose in the federal courts based on the merits. Not based on politics, or public opinion, or some lame amicus brief. By the way, I filed my own amicus in that case ripping apart the Clement brief. Turns out, like the insurance companies that hired him, he doesn't know much about bail. And, the truth is that a big, difficult issue like pretrial release and detention -- pitting the 8th Amendment against the 14th Amendment -- will likely have a series of decisions that go both ways before we get the whole thing sorted out.

3. Someone has to confront the brainiacs working on the overall insurance strategy that simultaneously fighting for "bail" (you know, conditional release prior to trial for people accused of crimes -- one of the many big things we enjoy as Americans) and against defendants by calling them criminals and acting like nobody should be released pretrial is just boneheaded. I know you agents understand the difference between a defendant and a "criminal," so you just need to explain it to the insurance people. Tell them that if they don't like people, they can get involved in sentencing. The insurance companies' strategy makes you all look like you don't even understand your own profession. I know you do.

Dear Bail Agents at PBUS:

This week you gather to talk about pretrial release and detention, something your profession has cared about since 1898, and the ancestors to your profession have cared about since 400 A.D. But you are at a crossroads, and I’m writing to give you a warning.

 Those of you who’ve read my blog know that I like bail agents. As I’ve said many times before, the bail agents I know are the salt of the earth, and likely care about the right to bail more than a lot of judges I have known. In my own little world, I have made people really anxious whenever I’ve told a state that there is nothing inherently wrong with private pretrial, that bail agents might have a place in the world of pretrial justice if they simply change their model, and that I probably wouldn’t even mind using money if someone could figure out a way to use it so that it works and is fair.

 But if you’ve read my blog, you also know that I’m not fond of the bail insurance companies or the groups erected to protect them, like ABC and the insurance-plagued PBUS. I have seen them trample not only ordinary people who get in their way, but also bail agents themselves when they stand between those companies and their money. Mostly, though, they’re a problem because they fight literally every effort at bail reform, and thus are a hindrance to pretrial justice. I have repeatedly written that their strategy to fight everything will only bring your livelihoods to a swift demise, and yet they believe that strategy is the only one that has any hope of assuring that they remain in business. That strategy is killing you, but they show no signs of changing it.

 New Jersey is a good example. When reform began, the insurance companies fought hard. No money? Never! Risk assessment instruments? They’re discriminatory and flawed (by the way, insurance companies arguing that actuarial risk tools are flawed is kind of funny, given they use them for literally every other kind of insurance)! Pretrial services supervision? Public welfare! Are there any poor people in jail? Of course not! Do any dangerous rich people get out who shouldn’t? Never! Use D.C. as a model? No, not for anything! What about Kentucky? They’re worse! 

 But what did all that get them in New Jersey? By all accounts, the potential demise of commercial bail bonding in a state that left money and bail agents intact. So now the insurance companies have a PR firm and are manufacturing stories about success, because most everything is going south. Just stop and think for one second – can you see where fighting literally everything a state is proposing can lead to that state thinking that the insurance companies simply aren’t being reasonable?  And the states are learning pretty fast that even if they listen to the insurance companies, those companies sill fight them later on. People are simply sick of the message the insurance lobbyists are giving. That’s why even though the New Jersey judges can still use money, they just don’t want to. That’s the insurance companies’ doing.  

 You’re going to hear a lot of upbeat messages this week about the bail wars. They’ll tell you how they asked to file a brief in Harris County, but they won’t mention that it’s recycled from the 11^th Circuit and is unlikely to even be read by a district court judge except for comic relief. They’ll tell you they argued in Maryland, but they won’t tell you they lost the argument (well, they’ll say they added secret, last minute compromise language that will save the industry, but you can read the gist of it here). They’ll try to convince you that the new administration and Congress will bring an end to the reform, but they won’t tell you we have bipartisan support from groups as diverse as the Kochs and the ACLU. They’ll tell you that PBUS sent a letter – just yesterday – to the Ohio Sentencing Commission, and then I suppose it will dawn on them that the same day they trashed me by name on their website. Do you think the people from Ohio will look at one and not the other? I know those people, and they know me. Heck, I was on the email list that received the PBUS letter. So, overall, do you think that was a good strategy – “Please help us, but look at what we do to people who don’t?” Ask your PR firm. People remember these things and they all sink in. You’re going to hear a lot of upbeat things, but only because you keep them in business.
 

Don’t be fooled, bail agents. They’re using your money to fight everything that comes their way and hiring a PR firm to make you think they’re winning. They have to, because they’re not winning, and the alternative – to help bail agents survive this generation of bail reform – is not part of their strategy. But the reality is that there’s simply no place in the future of American pretrial release and detention for bail insurance companies. Those big numbers are coming down, and if you don’t have big numbers, you don’t need insurance. Their demise was bound to be messy, but you don’t have to let them drag you down.   

You all need to hire someone really smart (heck, hire the insurance lobbyist – he’s really smart), and tell him or her to think outside the box, ditch the “fight everything” strategy, and see if he or she can somehow convince all the other states to forget about all the previous nastiness and to take you seriously as a part of the system. The insurance companies will never do that for you. ABC and PBUS will never do that for you. Here’s the warning: you need to break loose, or you’ll be out of business. You know what I’m talking about.  

Bail Agents: Insurance Lobbyists Are Not Your Friends, Part III

Earlier, I wrote parts one, http://timschnackebailbasics.blogspot.com/2015_06_01_archive.html,

and two, http://timschnackebailbasics.blogspot.com/2015/07/pennsylvania-lawmakers-back-commercial.html, of this series, and here is number three, a classic example of how the insurance companies are ruining the reputations of bail agents everywhere.

Recently the new guy over at the American Bail Coalition – the big bail insurance lobbying group that wants to keep everything the same at all costs – wrote an opinion piece in the Albuquerque Journal about New Mexico bail reform. In that piece, he wrote three main things that are simply wrong, that are quickly refuted, and that leave people in New Mexico rightly thinking that the entire bail industry is trying to hoodwink them.

First, the author cites to a study in a Chicago economics journal to say that surety bonds are better than any other form of release. I’ve written about this before, so I’ll just summarize. The Bureau of Justice Statistics (BJS) put out a bunch of data about pretrial release. Some people took that data and wrote a couple of papers saying that it showed that certain types of release – like release on a commercial surety bond – were better than other types. The insurance companies went batty, running around the country saying that the data and the papers proved that they were best. Then BJS put out a paper saying, “No, no, you can’t use our data to make comparisons of release types like those made in the papers – it would be really misleading to do so for a bunch of reasons.” The insurance companies complained mightily, saying that the whole thing was unfair and rigged against them. Then those companies went silent. And then, after six months and as if nothing ever happened, the bail insurance company lobbyists went right on citing the studies and data for the exact thing that they weren’t supposed to cite them for. You see, they’d figured out that nobody was going to do anything to them if they misled people, so why stop?

So the Chicago paper (and others like it) continues to get cited by the bail insurance companies even though it’s wrong and misleading to do so. The insurance companies also get bail agents to try to pass it out in various states. What’s the problem? The problem is that right after they pass it out, someone, like me, usually explains the whole data thing, and the bail agents look like liars.

Second, the author mentions that New Jersey’s efforts at bail reform are unaffordable. During passage of that reform, literally the only people who made this claim were people who made money from the current system – the bail insurance company lobbyists – who used inflated inferences about certain budgets that nobody else in New Jersey even believed. Bail reform passed in New Jersey for a number of reasons, one of which was that the reforms were going to be extremely cost-effective, not more expensive.

Third, the author cites to Mesa County, Colorado, and his stuff about that jurisdiction was so wrong that Mesa County and its Chief Judge both felt compelled to issue a response. Think about it – a little county in Colorado has to correct what a national insurance group says to people in Albuquerque, New Mexico. It’s sad, but it’s needed. Frankly, if it happened every time the insurance companies made bogus claims, all you’d ever read is corrections.  

Finally, the author shows a fundamental misunderstanding of bail in America generally and bail in New Mexico in particular. Historically and legally, bail is a process of release with conditions designed to provide reasonable assurance of public safety and court appearance. The New Mexico Supreme Court, in State v. Brown, said essentially the same thing both in a footnote – where the court wrote that bail as defined in New Mexico could be effectuated by release on personal recognizance – and at the beginning of the opinion – where the court equated the right to bail with the right to be released pretrial. When the ABC insurance lobbyist says that “bail works,” what he’s trying to say is that “commercial surety bail works,” and we know from history that commercial surety bail has never worked. Equating the term “bail” – a right in so many American state constitutions – with a right to release to a for-profit bondsman, is a fundamental error that is amply illustrated by the fact that virtually all state constitutional right to bail provisions were drafted long before commercial bail even existed.  

How does all of this affect bail agents? Well, as you probably know by now, the public doesn’t distinguish between insurance company lobbyists and bail agents. To them, you’re all in the same bucket, so when an insurance lobbyists misleads them, they take it out on the bail agents. Right now, Mesa County and a bunch of other people (including me) are explaining to everyone in New Mexico why this opinion piece is based on wrong information, and the people of New Mexico won’t distinguish between ABC and the bail agents who actually have to work for a living. This is really the first thing this guy has written since being hired by the insurance companies, and he’s already managed to damage the reputation of bail agents throughout New Mexico. You agents will eventually wonder why the great piece by ABC didn’t help you, but now you know. It’s wrong, and we’re telling everybody in New Mexico why it’s wrong.

Remember what I’ve written before in this blog. There may be a place for private pretrial in America’s system of pretrial release and detention, but there’s no place in the future for bail insurance companies. They know that, so they’re fighting, and they’re going to keep trying to get you to fight with them. It’s really their only way to continue making all that money. This is your chance to morph into a private business model that might actually benefit the courts and the general public. But as the Albuquerque Journal piece amply demonstrates, you’ll lose that chance if you rely on bail insurance companies to help you.