The End of Money Bail?

We interrupt this normal break between blogs to give you a link to a Pretrial Justice Institute's press release, which discusses not one, not two, but three separate studies illustrating the flaws and damaging effects of money bail.

Please note all of the important people who signed onto the press release. And that's on short notice! A lot of those people were with me last week as we discussed the end of money bail.

Happy reading!

The Untold Cost of Eliminating Money Bail – A Lot More Money?

The latest from the bail insurance companies says that people like me don’t like to talk about the “cost” of reform. Not true, my friends – in fact, let’s talk about it now.

I’ll start big picture. Basically, the insurance companies say that commercial bail costs less than anything else. The problem is that when they say this, they leave a lot out, which is why we’re having a bail reform movement to begin with. First of all, they leave out the fact that private bail companies only care about court appearance, not public safety, and yet judges are required to care about both of those things when they set bail. In virtually every state, you can only forfeit a commercial surety bond for not showing up for court. If a defendant commits a new crime while on release, the bail agent and insurance company don’t have to pay anything and they get to dump the defendant as a client. In fact, if the judge plays along and sets another commercial money bail bond, then the bail agent and insurance company can just do the whole thing over again. I often say that the best client that the bail industry has is one who always comes to court but keeps committing new crimes.

Commercial surety bonds have absolutely nothing to do with public safety. Just ask the people of Washington State, who had to change their constitution because a guy named Maurice Clemmons got out on a commercial surety bond, tried to rape two small girls, and then shot and killed four police officers. So what’s the cost of not even caring about public safety? Really, this is the biggest thing the bail industry has to deal with, and they just don’t have an answer for it.   

Because we keep pointing this out, you’ll hear the insurance lobbyists floating some incredibly strained logic trying to convince people that they care about public safety like, “Well, we make sure they come to court, and so long as they’re coming to court, they aren’t committing new crimes.” Oh, yeah, now I remember. That’s exactly what the insurance company lobbyist said in the blog I just read. He said, “When people show up for court, they are not out in the community committing additional crimes.” Man, that’s just messed up. Again, commercial surety bonds have nothing to do with public safety. And if you argue for one or set one, then you look like you don’t care about public safety either. That’s it.

The second really big thing they leave out is that bail agents and insurance companies don’t want to have to help someone bond out of jail. Basically, they want to pick and choose who gets out of jail, and they want to pick and choose mostly based on how much money people have. In the end, that one thing – the ability to turn people away for lack of money (or really for no reason at all) – has led to the mass incarceration of pretrial defendants ever since we created the commercial surety industry in 1900. And the costs associated with that are astronomical. You’ll never hear an insurance company lobbyist compare the cost of being released through a public or nonprofit pretrial services agency versus the cost of staying in jail because some bail agent decided not to help. The cost of jail can be as much as twenty times the cost of pretrial services agency supervision in the community.  

The third really big thing they leave out is that when there’s a public sector release system in place, the bail agents and insurance companies really, really like to have someone released on a commercial surety bond along with the public agency supervision. That way, they don’t have to do anything except collect money. This is commonly known as double-supervision, and it wastes more money in America than we can even estimate.    

The fourth and final really big thing they leave out is that commercial bail agents and insurance companies simply have no way of determining a defendant’s risk for failure to appear for court or public safety. They go by their gut, and often you’ll hear them say things like, “Well, since that guy can’t afford to pay me, he must be a risk to public safety so it’s a good thing that he’s in jail.” Part of the job of pretrial services agencies and programs is to assess defendant risk, lately through the use of validated pretrial risk assessment instruments that use sophisticated statistics to determine the likelihood of returning to court and not committing new crimes. When they use these instruments, they can help judges match supervision needs to risk, and that saves an inordinate amount of money. I once heard a bail insurance lobbyist say that he didn’t believe in these risk instruments – that he actually believed it was a better system to rely on a bail agent’s gut instinct. Can you imagine? An insurance guy who doesn’t believe in actuarial risk assessments, which are the very things that those same insurance guys use to determine your health, life, and car insurance.

The rest of the insurance blog tried to piece together odds and ends designed to show that it’ll cost a bunch of money to dump the old system. Now, remember, the system they don’t want us to dump is the system that doesn’t care about public safety, that doesn’t care if defendants get out of jail, that doesn’t care if it wastes resources, and that has no way of determining or responding to actual defendant risk – again, they just left all that out. So here are a few things that the blog said.

First, it said that New Jersey was presented estimates about how much a pretrial services agency approach would cost the state. Well, guess who presented those estimates? Right. It was the bail insurance companies, which used an incredibly inflated estimate of the D.C. pretrial budget and extrapolated that budget to the entire state of New Jersey. Yes, estimates through testimony were presented, but nobody in New Jersey bought it. Even with that testimony, that state passed changes to its constitution and statute designed, among other things, to reduce, if not, eliminate reliance on the commercial bail system.

Second, it used the same D.C. pretrial budget to say that it would cost some astronomical amount in some other city. The insurance companies have been using this argument for years now, and it simply isn’t working. Everybody knows that the D.C. pretrial budget is bigger than everywhere else. That’s why, after the insurance companies point out the D.C. budget, people like me show decision makers about twenty other pretrial services agency budgets, from all over the country, that demonstrate how you can run an effective pretrial services agency or program for nominal costs. A lot of places are even using probation officers to do the supervision, and we already have probation in virtually every jurisdiction in America. 

Third, it said that states and counties benefit from the taxes and forfeitures inherent in a private bail system. Well, if I ever actually saw an insurance company pay on a forfeiture, it would be a first. In a recent Mother Jones article http://www.motherjones.com/politics/2014/06/bail-bond-prison-industry, one bail insurance lobbyist said his company had been in business for 107 years and hadn’t paid out a single claim. And just check your statutes. If they’re like everyone else’s, you’ll see how the bail industry has helped enact multiple hurdles, extensions, and exceptions, all to keep them from having to pay forfeitures. By the way, insurance guys, if you wonder into a law library, you’ll also see that setting bail to make money is unconstitutional, so saying that you like a bail system that makes money for the government neglects the fact that such a system would actually be unlawful for that purpose. I wouldn’t focus on this argument too hard, because the tide is turning in America away from profiting off of flaws in the justice system.    

The blogger ends by saying that the comparison between release on a commercial bail bond and release to a public or nonprofit pretrial services agency or program isn’t even close, and he’s absolutely right. Commercial bail (as it’s done today) is so far off that it needs to go. There’s probably a place for what I call “private pretrial,” but that’s not going to look anything like what we do today, which is to rely on huge, arbitrary numbers, and which seems only to exist to line the insurance companies’ pockets.

So, you see, people like me don’t mind talking about cost at all. I just don’t do it all that often because most of the improvements I’m talking about doing are for reasons that include fairness, rationality, common sense, and following the law. Ask some bail insurance company lobbyists to tell you the cost of not following the constitution, the cost of ignoring the research on risk assessment and mitigation, the cost of unnecessary pretrial detention, or the cost of allowing extremely high risk people out on a surety bond simply because they can pay. Those are the costs that matter, and those will be the costs that the bail industry won’t want to discuss. 

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.

Bail -- Where Do I Start?

Where do I begin if I'm thinking about making improvements to bail? What do I read if I see a bill in the upcoming legislative session that seems to be taking my state backward in terms of pretrial justice? They're good questions, and questions that I and the National Institute of Corrections felt should be answered.

We answered the questions with two documents -- Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform -- and Money as a Criminal Justice Stakeholder: The Judge's Decision to Release or Detain a Defendant Pretrial. You can get them either through the NIC library or by going to the following link on my website: http://www.clebp.org/, and then click on the tabs for either "Fundamentals of Bail" or "Money as a Criminal Justice Stakeholder."

The Fundamentals document is precisely what the title says it is. First, it's a resource guide, and you'll find more than enough sources and resources in that single document (current to about August of this year) to help you find your way in each knowledge area, including (1) why we need pretrial reform, (2) the history of bail, (3) the legal foundations underlying bail, (4) the pretrial research, (5) the national standards, and (6) the terms and phrases used at bail. Second, it's a new framework for looking at things, and is designed to get everyone on the same page so that they can make improvements to the pretrial process that are purposeful, lawful, and effective. This document was written so that anyone interested in pretrial justice -- from line pretrial or police officers to governors or legislators -- can read it, and it's designed to be one of the first things one reads when considering pretrial improvements.

Although other people will benefit from reading the Money document, that piece should specifically be given to judges. Basically, it says that once they know the fundamentals of bail, judges following the legal and evidence-based practices discerned through those fundamentals must make an in-or-out decision in every case, with nothing (including money or poor laws) standing in the way of effectuating the decision. It then cites to the most current research that helps judges do precisely that. The paper has a few more footnotes, quotes, and other stuff that judges like to see if they are considering changing practices, and so it's not quite as easy to read as the first one, but hey -- it's shorter!

By the way, the papers are compatible with and run parallel to other important learning modules, such as the National Judicial College's Pretrial Curriculum, and the NIC's Orientation for New Pretrial Executives. In addition, you will see a strong correlation between the concepts in these papers with the new electronic glossary published on the Pretrial Justice Institute's website in the last week. That's on purpose.

As I say in the papers, pretrial justice is like sharing a book -- it helps to be on the same page. These documents are designed to do just that.

Make sure you have the most current version -- it has a couple changes that we made in the last week or so. You'll know it's current by the dates in the web address, including November 5, 2014 and September 8, 2014.  Happy reading!