Bail Bond Trends

The corporate bail insurance lobbyists recently testified to Colorado’s Senate Judiciary Committee that a there was a national trend toward using for-profit bondsmen and cited to Wisconsin as proof. The problem is that Wisconsin has once again decided that bondsmen should play no part in its justice system.

Instead, the trend that I see (and that others should note) is that the corporate bail insurance company lobbyists will do virtually anything in their power to increase profits, including slipping an enabling provision into a state budget bill in the middle of the night, and then hoping it will go through so that they can mislead other states about their industry.

Nobody in Wisconsin, save a couple of good friends of ALEC and a few oily characters who like to use ALEC as their personal platform, wanted bondsmen back in. And fortunately for Wisconsin, the Governor listened.

Good for you, Wisconsin!  See you soon! 

Criminal Justice, Redemption, and Empathy

Here’s a story about criminal justice, redemption, and empathy. The title is, “In America, Criminal Justice System Needs Redemption More Than the Prisoners.”

http://www.alternet.org/belief/america-criminal-justice-system-needs-redemption-more-prisoners

It tells the story of a prosecutor who slowly began seeing how his Christian worldview conflicted with how he was treating the least among us by traveling down the traditional criminal justice path of mass incarceration in the name of justice. Really, it’s a story about empathy, because anyone who can truly empathize with a criminal defendant cannot help but see the person who is capable of a better life, and who should be forgiven and extended a community’s helping hand at living in society. This prosecutor came to a sort of epiphany when he actually entered into a prison and started teaching college classes to inmates. According to the prosecutor, Preston Shipp, interacting with these inmates caused him some degree of cognitive dissonance:

When the only information you receive about a person is the worst thing they’ve ever done, it’s very easy to regard them as less human. How can I reconcile the job I was asked to do as a prosecutor with my faith in Jesus, who came proclaiming release for prisoners?

How indeed? In this case, he couldn’t, and so he quit his job as prosecutor and now advocates for criminal justice reform. The article talks about a documentary you can watch describing his redemptive transformation.

So what does this have to do with bail? Well, apart from the idea that judges and lawyers would benefit from the occasional trip inside the jail or prison they send people to, I have seen a great lack of empathy in the criminal justice system for pretrial defendants. This lack of empathy is likely expected. At a typical bail hearing, there is often only a charge and the police affidavit along with a criminal history to guide everyone. These documents tend overwhelmingly to cast the defendants as bad people who did bad things. Still, these people are human, just like you and me, and if we saw even a little bit of ourselves in them, we might not be so quick to lock them up or otherwise make their lives miserable before their trials.  

Don’t get me wrong. I care immensely about victims of crime. On more than one occasion I’ve been the victim of a crime, and I have close relatives who have been victims of violent crimes. But I think that empathy allows us to care about both victims and the people who stand accused.   

I’ll quit preaching now, but I have to say that I don’t think I would even need to be working at bail reform if everyone showed just a little more empathy. 

Confused About What Bounty Hunters Actually Do?

Here's a story written by a “fugitive recovery agent.” http://www.aboutbail.com/articles/1453/bail-bonds-enforcement-agents-media-portrayal-and-the-perfect-world

We used to call them bounty hunters, but I think I like the term “agent” better because it sounds fancy and makes you feel like you're gambling in Morocco. He says he’s setting the record straight about what these agents actually do because people are confused.

Frankly, I don’t think I’m all that confused. This next story, http://www.newschannel9.com/news/top-stories/stories/bondsmen-arrested-shooting-trenton-man-5494.shtml, is pretty clear about what these two “fugitive recovery agents” in Florida actually did: they chased a guy, got into a scuffle with a dog, shot the guy, and got arrested for aggravated assault (the defendant was only facing charges for disorderly conduct, by the way).

The more stories I read about people trying to correct misconceptions about what they do, the more I think that they aren’t really misconceptions, you know?

    

Bail, Insurance Companies, Politicians, and Greed

In the story, "Bail Bond Bill Will Create Debtor’s Prisons,” by Bruce Murphy, he asks, “Why are Republicans pushing a bill opposed almost unanimously by criminal justice professionals?”

http://urbanmilwaukee.com/2013/05/21/murphys-law-bail-bond-bill-will-create-debtors-prisons/

Why, indeed? But Wisconsin is not alone. Across America, big insurance company lobbyists are pushing bills designed to increase their profit – criminal justice be damned – by backing bills to insert for-profit bail into the system, or to limit judges in using methods of release that don’t involve sending business the insurance companies' way. In a quote from District Attorney John Chisholm in the article, “The return of commercial bail bonds, will primarily benefit out-of-state interests, the large bail-bond corporations” motivated “purely by financial interests” at the expense of public safety. 

Oh good. Let’s pass it.

But it’s worse than that. I believe that the bail insurance companies want back into Wisconsin just so they can say that it represents a “national trend” toward using for-profit bail. In fact, I was recently at a Senate hearing in another state where the bail lobbyists said that very thing. Never mind that virtually no one in criminal justice, from police to judges, feels that for-profit bail has any meaningful value. Never mind that the bail industry tried to get into Wisconsin before, and failed. Wisconsin is just being used to further the interests of the big bail insurance companies. They have the money, and thus they have access to politicians who, strangely, will pass criminal justice laws that the whole criminal justice system opposes.  

There was a guy at the Senate hearing who said that he teaches on “best practices” at bail. Unfortunately, he is paid quite well to say that for-profit bail is a best practice. He is wrong, of course, and hopefully Wisconsin will rally together to keep this corporate interest out of criminal justice. Believe me, once they are in Wisconsin, the state will see a barrage of new laws each year designed to continue increasing the bail industry profits. It will see a new regulatory bureaucracy necessary to watch over the “problem child” of regulated occupations. Finally, and most unfortunately, it will see unnecessary pretrial detention of those who simply cannot afford to pay the bondsmen’s fee.

Scholars have openly condemned the for-profit bail industry practically since its inception. Wisconsin should be proud to know that it was famously enlightened when it abolished the practice in the 70’s.

Read the story. It shows how ALEC, the various bail insurance companies, and a few lobbyists are using Wisconsin as a pawn in their American bail strategy – just so they can make a buck.   

"Low" Money Bonds and Unnecessary Pretrial Incarceration

Here is part of a jail study recently done by my friend, Marie VanNostrand of Luminosity, for New Jersey:

As stated previously, nearly three-fourths of the jail popu­lation had a primary custody status of pretrial (Superior and Municipal Courts). A closer examination of those in­mates reveals that just over 5,000 inmates, or 38.5% of the total population, had an option to post bail but were held in custody solely due to their inability to meet the terms of bail. This means that the inmates were not serving a sentence, had no holds or detainers, and could have been released if they were able to post bail in the form of cash, cash/bond, 10% option or support arrears. Table 11 contains the bail amount ranges by bail post op­tion for inmates who were held on bail only. When con­sidering the 10% Deposit Option and the Cash or Bond Option, which allows for payment of approximately 10% to a private surety, there were approximately 800 inma­tes held in custody who could have secured their release for $500 or less. Considering the same circumstances, an additional 259 inmates could have secured their release for between $501 and $1,000 and an additional 489 inma­tes could have secured their release for between $1,001 and $2500. When these groups are combined, there were 1,547 inmates (12% of the entire population) who were held in custody due to an inability to pay $2500 or less.

Prior to studies like this we would say, using logic, that there were people in jail who couldn’t get out because they couldn’t raise the money. If you can imagine, there were people – like bail industry lobbyists and certain uninformed criminal justice types – who simply didn’t believe it. When pressed, they sometimes even said that if there were such defendants, most of them were probably choosing to stay in jail for some reason or other.

In Jefferson County, Colorado, we set out to test that assumption by going cell to cell and asking defendants who had not posted bail why they had not posted bail. We asked everyone, and then we separated out the ones with holds, those serving sentences, etc. Like New Jersey, we found that 60% of those defendants who had not been released on bail within 48 hours were still in custody because they couldn’t post the amount. And yes, we did find some that some didn’t want to post it for one reason or another (like hoping to get time-served), but only about 7%  (who weren’t counted in the 60%, by the way). Then we did another study later on where we found, like they found in New Jersey, that about 100 “minimum security” inmates in the Jefferson County Jail had bail amounts of $500 or less, and another 100 had bond amounts between $500 and $1,000. The bottom line is that if they were to look into it, virtually all jails situated in jurisdictions wedded to a money bail system will find some percentage of defendants incarcerated unnecessarily. And if they were to look into the amounts keeping these defendants in jail, I think they would be surprised at how low those amounts may seem to be – especially to people, like judges and attorneys, who probably think that $500 is no big thing.       

But my point is this. In bail, there are certain basic assumptions that we would like to be able to make concerning defendant behavior, such as the fact that most defendants would rather not stay in jail versus being free before their trials. Unfortunately, those who profit off of the old system will deny virtually everything, forcing people like me and Marie to go out and prove it.  

High Money Bail and Prediction

In a recent story out of Aspen, we have what the headline reads as a “huge bond reduction,” leaving everyone scratching their heads why.

The article states: 

“In a bizarre twist Tuesday, a local man accused of a brutal attack on his former girlfriend had his bond reduced from $400,000 to $2,500.

“Peter Nardi, 50, who lives on Highway 82 near Smith Hill Way, was expected to be released from jail Tuesday afternoon, said his attorney, Arnold Mordkin of Snowmass Village.

“Chief Deputy District Attorney Andrea Bryan was mum on why she agreed to the vast reduction. She told Judge Gail Nichols of Pitkin County District Court that she did not want to state her reason for agreeing to the lower amount for fear of jeopardizing an “extensive, ongoing investigation.”

“But Bryan said the same felony charges remain pending against Nardi, a former restaurateur in Snowmass Village.

The only thing everyone does know, it seems, is that $400,000 kept the defendant in jail, but $2,500 allowed him out. Which begs the question – did the judge mean for him to be initially detained pretrial? If so, the first high bond amount raises constitutional issues not only concerning the judge’s reason (setting bail to detain in a right-to-bail state like Colorado is constitutionally suspect) as well as to its excessiveness under the 8^th Amendment to the U.S. Constitution.  The judge apparently mentioned the factual allegations as a basis for the initial amount, but the problem with basing financial conditions of bond on the charge or the allegations is that it starts to resemble punishment for something the government has yet to prove.    

Given that the only two constitutionally permissible reasons for limiting pretrial freedom are public safety and court appearance, it would have been nice if the judge had said something about them. More specifically, given that no amount of money in Colorado can be forfeited due to breaches in public safety, it would have been nice and actually more appropriate for the judge to explain exactly how the money was necessary to address risk of flight. That’s really the only reason why you should use money in Colorado. Money has nothing to do with public safety. It can’t be forfeited for new crimes or other breaches in public safety. And the research shows that money doesn’t make anyone safer. Using money to make people safe when it doesn’t work and you can’t even forfeit it for new crimes is irrational, which means it’s probably unlawful no matter which constitution you are looking at.   

In the story, the defense attorney said, “It’s clear to me that there was something that was originally [in the investigation] that is no longer there – I assume it is something to do with the woman’s story and that something significant has changed.” So what could have changed in the woman’s story that would have altered the defendant’s risk for flight when the charge remains the same? Nothing, most likely, even though that’s how bail is supposed to work. One of the toughest applications of the presumption of innocence at bail is for judges to note the charge and an affidavit (usually a sad tale of events that always supports the charge), but to look beyond those things to evaluate the only two constitutionally valid reasons for limiting pretrial freedom.

And here’s the kicker: Colorado has recently developed an empirical risk assessment instrument designed to determine which factors actually predict pretrial failure based on these two constitutional reasons. In the past, present charge and affidavit would have guided most decisions, as it perhaps still did in this Aspen case. But guess what factors are actually predictive of pretrial failure? There are twelve: (1) having a home or cell phone; (2) owning or renting one’s residence; (3) contributing to residential payments, (4) past or current problems with alcohol; (5) past or current mental health treatment; (6) age at first arrest; (7) past jail sentence; (8) past prison sentence; (9) having active warrants; (10) having other pending cases; (11) currently on supervision; (12) history of revoked bond or supervision. That’s right, no “current charge at arrest” or “what the police said he did in the affidavit so that a judge can find probable cause.” Not having the current charge as predictive of pretrial failure is so counterintuitive to our current thinking that that someone actually told the State Crime Commission recently to add it to the assessment tool, “even though it would make the tool less predictive.” Of course, the group decided not to do so. Adding a non-predictive element, no matter how logical it may seem, to a predictive tool to make us feel better would be no different than adding “type of shoes worn at arrest.” It would be worthless and irrational.      

Looking at this case from a distance, time will tell if this defendant was the sort of person who was so likely to flee that only $400,000 (an amount virtually assuring his detention) was the only solution. If not, then there must have been some other reason for the initial high financial condition. Let’s hope it wasn’t just some judge’s subjective opinion about the seriousness of the charge. That’s not on the predictive list. 

Bail, Pretrial Justice, and Money

 Bail, Pretrial Justice, and Money

This is a recent entry from a blog sponsored by the Bozeman (Montana) Daily Chronicle. At the end of this blog, I’ll give you the rest of the story and tell you how the motion panned out, Paul Harvey style.  

County attorney wants accused Taco Bell shooter's bail increased

Whitney Bermes, Chronicle Staff Writer
Posted: Jan. 25, 2013 10:40 a.m.

Gallatin County Attorney Marty Lambert thinks the bail for a man accused of a shooting at Taco Bell is too low. So he wants it increased fivefold.

Nathaniel John Budd, 22, was arrested Dec. 1 after police allege he shot a woman twice in the Taco Bell parking lot following an argument.

Budd was held in the Gallatin County jail on $100,000 bond. He was released on Jan. 7. 

In a motion filed Jan. 22, Lambert asked District Court Judge Holly Brown to increase that bond to $500,000.

You can see the rest of the story at: http://www.bozemandailychronicle.com/blogs/beyond_the_blotter/article_63d75144-6716-11e2-9689-0019bb2963f4.html. 

It illustrates three common points of misunderstanding in the administration of bail, which deal with (1) constitutionally valid purposes of conditions on pretrial release, (2) money and public safety, and (2) the arbitrariness of money bail.

The story reveals that the defendant had been arrested about a year before with a 45 caliber revolver. When he was ordered to give up his weapons after this recent arrest, however, he did not surrender any revolver. Moreover, police found other rifle ammunition in his car that didn’t match any of the rifles that he surrendered. Clearly, authorities believe that he is holding out on surrendering his full collection of weapons. Accordingly, the county attorney wants the monetary condition of release raised from $100,000 to $500,000.

The first question that must always be asked in conditions (including financial conditions) at bail cases is “why.” In other words, what is the constitutionally valid rationale for seeking an increase in the amount as a limitation on pretrial freedom?  Bail must have a valid purpose, and these days the only purposes constitutionally recognized as valid are risk to public safety and for failure to appear for court. If the defendant actually breached one of his bail conditions (nobody has said he has, yet, they only believe it to be so) then Montana can certainly revoke the bond under its existing statutes. And clearly, if anyone dared to say that the increase was in some way punishment for their belief that the defendant lied to authorities and didn’t surrender his weapons, then that would be a clear violation of the constitution. Nobody has said anything about the defendant being a risk for flight – after all, he is already out on bond and is apparently watching all this from relatively close sidelines.

Which leaves us with public safety. Obviously, if everyone believes the defendant has access to weapons, then prosecutors might make a pretty good argument for why they feel more restrictive conditions of release might help to further public safety, a constitutionally valid purpose for limiting freedom. The problem is that money bail, in Montana as in most other states, cannot be forfeited for breaches in public safety. It can only be forfeited for failure to appear. Right now, the defendant is out on a $100,000 bond. If he commits another crime tomorrow, that amount will not be forfeited. If it is raised to $500,000, and he commits a new crime, that amount will not be forfeited. It is only lost if he does not return to court at the proper time. You can thank the commercial bail bond industry for this fairly common part of nearly every state’s bail law.

Accordingly, legally speaking, money has nothing to do with keeping anyone safe. But what does the research say? Well, it turns out that loss of money has never been demonstrated in any way to protect the public either. One only has to look at the headlines to see that crimes are committed by individuals on all types of release, including those secured with high amounts of money. Maurice Clemmons killed four police officers while out on a fairly high money bond. Others have done the same thing while out on much less. Beyond the headlines, however, are numerous social science studies attempting to find a link between public safety and money, but there is none. That is why the national best-practice standards on pretrial release say that courts should never – I said never – set financial conditions of bail in order to protect the public.

In fact, the only way that money could protect the public is if a court were to set it so high that the defendant could never post it at all. Sidestepping the fairly serious constitutional questions surrounding this practice – a practice that has been questioned, if not condemned by scholars in this country for over five decades, the fact is that if the $500,000 bond is a commercial surety bond, then there’s always a pretty decent chance that the defendant will be released. That’s because even though everyone believes that bail bondsmen charge ten percent on every bond they write, often they lower that percentage. Indeed, I have seen instances of bondsmen helping a defendant to get out of jail with no money down and on an installment plan to eventually pay the fee. And remember, if the defendant commits a new crime while he is out, nobody is out any money anyway.   

At some point, all of this raises the very important issue of the arbitrariness of money. I mean, why did the attorney ask for $500,000 and not $1 million? Why not $10 million? In my humble opinion, the arbitrariness of money bail will be its ultimate downfall. Arbitrariness in setting nonfinancial conditions at bail typically stems from finding no rational reason for connecting the conditions to individual defendants. Financial conditions suffer also from arbitrariness by degree; even if a judge may be able to articulate why he or she feels that money generally is an appropriate condition of release for a particular defendant, that judge typically is unable to explain why one amount has been chosen over any other.

So in the end, you have a requested increase of money that might not be tied to any constitutionally valid purpose for limiting pretrial freedom. Moreover, even if it is based on public safety concerns, the request is also potentially irrational because it money is not legally, empirically, or even logically tied to public safety. And, unless there is some good reason for one amount over another (or even for the initial amount, for that matter) you have a request that is also arbitrary. In appellate work, irrational and arbitrary actions by government officials are typically deemed unlawful under multiple theories of law.

There are solutions to this dilemma, which I will write about in future posts. Until then, it should be enough that we at least fully understand what we are doing. If we can’t act rationally and non-arbitrarily in these big, high profile cases, how can we possibly do so with the vast majority of bail cases, in which hundreds of dollars can mean the difference between pretrial freedom and jail?

And now . . .  the rest of the story. The judge denied the request because prosecutors didn’t provide any proof the defendant still had any firearms. Oh well, not everything is exciting.  Good day.