Bail Reform: Bully Activism at its Best?

Leave it to a bail insurance company to get so many basic things about bail utterly wrong. In a recent post on one of the main bail insurance sites, the company was bemoaning the recent federal lawsuits against money bail. In doing so, however, it makes a few fairly incredible misstatements that I can’t let go without comment.  

First, the insurance company tries to justify bail schedules by talking about how fair and “well thought out” they are. I’ve written extensively about bail schedules, studied bail schedules from across the country, and attended those meetings with the judges and others who create them, and the idea of a bail schedule being anything less than arbitrary and completely irrational is ludicrous. In my jurisdiction, the people who created the schedule picked money amounts out of a hat – no one could even remember what numbers started the whole thing off. And when I looked at all the other schedules here and in other states, I found the same thing. Arbitrary numbers, which were occasionally raised to account for inflation or perhaps headlines, with nobody having any idea about where the amounts even came from.

In fact, to say that the numbers are arbitrary is an understatement. I’ve seen and written about jurisdictions that have doubled every amount on their schedule in blanket fashion, and jurisdictions that halved every amount. Back in the 1920s, bail researcher Arthur Beeley wrote that the fact that the numbers were round numbers – like 5,000 or 10,000 – hinted at their arbitrariness. And he’s right. In fact, until you can argue rationally why $5,000 is the proper amount for an assault, when $4763.47 isn’t (without considering the individual characteristics of a particular defendant, and beyond questioning the 5,000 for other constitutional flaws), you’re just making both of them up. Fortunately in my jurisdiction, the judges eliminated the schedule without being sued, and they did it because the schedule was unfair, irrational, arbitrary, and the antithesis of the kind of individualized bail setting that had any hope of following the constitution. Yes, schedules are often created for benevolent purposes – I’ve written about this, too. But you aren’t paying attention if you haven’t noticed that they frequently evolve into unwieldly beasts that tend to keep more people in jail than out. Our old schedule was nearly 40 pages long, and I’ve seen them as long as 90, but some of the worst just list two numbers – one for all felonies and one for all misdemeanors. Overall, bail schedules are just another manifestation of a flawed and likely unconstitutional money-based bail system, but they have additional issues that make their extinction even more likely.

Second, the insurance company says that bail “is not about release.” Now I would think an entity making money from bail would know something about bail, but apparently not here. If you look deep into the history of bail you will see that the purpose of bail prior to the Norman Invasion was to avoid blood feuds. With the Normans, however, came an entirely new criminal justice system along with the building of jails, and from that moment on the purpose of bail forever shifted to provide a mechanism of release from those jails. Yes, court appearance was a legitimate purpose for setting financial conditions of release, but historically – both in England and America until the 1800s – those financial conditions were virtually always “unsecured” conditions, which meant that nobody had to pay anything up-front to get out of jail. In the 1800s, we ran out of personal sureties, flirted with secured cash conditions, and then ultimately tried the commercial surety business as a way to get bailable defendants out of jail. It didn’t work, which is why we’re here today. Bottom line, though, is that since the creation of jails, bail has always been about release. In 1951, the U.S. Supreme Court equated the right to bail with the “right to release before trial,” and “the right to freedom before conviction.” Is it any clearer than that? 

By the way, whenever an insurance company says that “bail is only about court appearance,” it’s showing its ignorance not only of what bail is and is not (it’s a mechanism of release, and it’s not money, which is a condition of release), but also of how bail has evolved to allow for release with conditions to provide reasonable assurance of both court appearance and public safety. The bail insurance companies’ complete disregard of safety as a legitimate public concern is one reason why we’re seeing bail reform to begin with. 

Third, the insurance company writes that the idea that money bail might discriminate against the poor “couldn’t be further from the truth.” As my dear friend’s delightful middle school daughter might respond, “OMG!” Doesn’t discriminate against the poor?! Are you nuts? It’s a money-based system, for goodness sake. Bail agents only help defendants with money. If defendants have money, they get out. If they don’t have money, they stay in. Really, this is something a child in grade school would know.      

And arguing that the money bail system doesn’t discriminate against the poor because so many poor people rely on the bail industry is like saying that separate but equal eating establishments weren’t discriminatory because all of the people eating in the “colored” restaurants were African Americans. I’m not trying to shock or offend by using a racial analogy, but I’m using it on purpose because in the post that I read, the insurance company not only made that argument – it also had the enormous audacity to write that money bail “supports racial and socioeconomic equalities.” That’s monumentally false, and anyone who believes it really has no place in criminal justice.

Overall, the insurance company piece provides a trifecta of fundamentally wrong statements about bail, leading me to conclude that this particuar company might be better suited to discuss something like health insurance. Or whole life. And, as usual, the way this goes is that once the insurance company makes wrong statements, people everywhere start correcting those statements. This not only makes them look bad, it also makes every single bail agent out there look bad, too. I hope it's just ignorance. Heaven help them if they're saying all this just to make money.  

What’s Wrong with the PBUS Agenda?

I just received a copy of the 2016 PBUS Winter Conference Agenda, and it includes a breakout session called “Lessons from Beyond New Jersey: Understanding the Arguments and Solutions of the New Generation of Bail Reform and Pretrial Release.” More specifically, it says the panel will “inform bail agents of the threatening arguments being made against the bail industry, arm agents with the ‘new’ vocabulary to use against such arguments and most importantly, educate bail agents about what solutions can be offered to minimize threats affecting the bail industry.” A good topic, right? What could possibly be wrong with it?

Well, for one thing, the person listed first on the panel is an insurance lobbyist who used to run the American Bail Coalition, which is no friend to bail agents. In fact, when I first started working in bail reform, ABC’s main stance was that there was no bail reform movement, there never would be, and that there was no reason for anyone to worry. It got that issue pretty wrong – the PBUS agenda is now calling it a “new generation of bail reform,” something I figured out and published five years ago. Since then, ABC has been wrong about a lot of things.

This generation of bail reform, as most of you now know, is not so much a fight against bail agents as it is a fight about money at bail – which is why the statement on the agenda of all the “threatening arguments against the bail industry” is so misleading. For example, I know the people working on the constitutional amendment in New Mexico, and they rarely talk about the commercial bail industry. Instead, they find fault with the lack of public safety in a money-based system and with secured financial conditions that not everyone can pay. So if you get to the panel on lessons from New Jersey and all they talk about is how to fight to keep things essentially the way they are today – with bail agents only involved with arbitrarily inflated financial conditions, with your focus only on court appearance and not public safety, and with insurance companies making money for doing nothing – then I hope you’ll ask them to give you some other ideas.

The real lesson from New Jersey – and now numerous other states – is that when people are fully educated in bail, they automatically move toward change, and that change involves adopting a risk-informed system of pretrial release and detention (both for assessment and supervision) using less or no money. This lesson is playing out across the country, and I can’t even keep up with the states, entities, and persons who are all going in the same direction. By arguing to keep things the way they are, ABC is on the wrong side of history.  

I’m about the only one saying this, but I’m being honest. A true private/public partnership in bail is only possible through what I call “private pretrial.” Some of my public pretrial friends don’t like when I mention it, and others don’t care because they don’t think you can pull it off. But I do, and I’ve seen it work. I’ve written about it enough that I don’t have to explain it here, but realize this: because the bail insurance companies wouldn’t exist in a “private pretrial” world, they’ll tell you that it’ll never work and convince you to keep fighting for the status quo.

Last month alone I worked with the White House, DOJ, five different states (of over 20 states that I worked with last year), and numerous public and private entities trying to “fix” bail, and they all intend to make major improvements because they don’t perceive anything valuable about the existing system. Meanwhile, the current head of ABC was on some funny little radio show calling bail reform “an epic battle” and arguing that if we dare to move from the way things are, we’ll be “setting a course for planet hell” and be required to create “state and local level U.S. Marshall’s Service” to go catch all the inevitable skips. Okay, maybe talk radio is made for hyperbole, but man, that last part is just plain crazy.

Don’t be fooled, bail agents. The bail insurance companies will use the “war against you” analogy simply to get you riled up to fight the bail insurance companies’ fight. But their fight is simply not in your interest. If you only believe one thing that I say, believe this: no matter what the bail insurance companies say, most states have decided that the current system – with all of those huge amounts of money based on charge – is fundamentally flawed, and so it’s going to change. Your goal should be to see where you fit into the new system. Arguing for the status quo, which is really the only argument the insurance companies have that will continue paying for their executives and their lobbyists, will ultimately only ensure that you’re not any part of the system we create.  

So what’s wrong with the PBUS agenda?  Well, from here it looks mostly as if the panelists on bail reform are going to try to convince you to fight to keep the status quo – to “arm” you with a new vocabulary, to help you to counter various arguments and to “minimize threats” to the way things work today. But they don’t seem to be offering any advice on how you can fit in when the country makes its inevitable shift. I won’t be there, but maybe you should ask them about all that. 

Bail Reform and Common Sense

When I was a boy growing up in the summer of 1968, my dad, who was asked to deliver a speech at the Republican National Convention that year told me, “You should always start off with a joke, and then hit them with your most important topic.” Last night, during the 2016 State of the Union Address, President Obama did just that. After the obligatory joke, the first substantive topic out of his mouth for the future was “criminal justice reform.”

Some journalists have written today that by merely mentioning it but not going into detail, the President was giving the topic the short shrift. But that’s not true. Criminal justice reform didn’t need an explanation. It didn’t need to be sold to Congress, and it certainly didn’t need to be justified to the American people. It’s a topic that is infinitely important in defining who we are as Americans and how we are seen by the rest of the world. It’s a topic that virtually everyone is behind, and that will most definitely happen. And it’s a topic that necessarily includes bail reform.

About a month ago, the White House and the Department of Justice co-hosted a meeting on fines, fees, and bail, which was designed to “build on the Administration’s commitment to criminal justice reform” by discussing and sharing ideas about how to implement “common sense reforms so that financial obligations imposed by the government do not lead to unnecessary involvement in the criminal justice system or exacerbate poverty.” It was a pointed meeting about money in the criminal justice system, and about how that money turns criminal justice on its head.   

Those of us bail types who were there provided an ample list of common sense things the federal government could do to help bring bail reform to both the federal and state systems. But I don’t think they needed a list. From the first speech by Attorney General Loretta Lynch, to one of the last by White House Counsel Neil Eggleston, it was clear that the White House and the Department of Justice had a firm grasp on how bail had been perverted in America since the mid-1800s into a detention-causing process through the use of secured money conditions. It was clear to them, as it is to virtually anyone else in America who does not profit from that system, that the current administration of bail is wrong and must be fixed.

In 1776, Thomas Paine published “Common Sense,” a pamphlet that inspired the American Colonies to declare independence from the tyranny of British rule. In the very first sentence of its introduction, Paine wrote: “A long habit of not thinking a thing wrong gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom. But the tumult soon subsides. Time makes more converts than reason.”  To Paine, American independence not only made sense, it was also inevitable.

Bail reform is no different. For too long we have allowed our system of pretrial release and detention to be crafted to suit corporate insurance interests with no regard to whether using money even makes sense. Like Paine’s observation of British rule, we have simply spent too long not thinking money bail wrong – thereby giving it the unfortunate home court advantage of custom and habit. Moreover, by merely announcing a desire to base release and detention decisions on a common sense system of assessing a defendant’s actual pretrial risk versus his or her charge (which may or may not indicate risk), states are inviting the inevitable reform involved in crafting entirely new statutes and constitutional bail provisions that are currently based on charge.

My dad sometimes told me that you could end a speech with a joke, too, but I won’t because this is no joke. The secured money bail system not only causes countless harms to society, it defies virtually every notion of American freedom and equality that we defend in our founding documents. Its very existence makes us worse, and common sense dictates that we fix it now.  

The American Bail Coalition -- San Francisco and Beyond!

The American Bail Coalition just sent out a memo trying to put bail agents at ease in the face of a growing number of federal lawsuits undoing money bail in America. In it, ABC raises a few points that are worth a second look if you’re a bail agent.

First, ABC says that the San Francisco suit is only about bail schedules, and not about abolishing what a recent article called “cash bail,” necessarily extending to surety bonds. Later, though, ABC says it helped the California Bail Agents with its motion to intervene in San Francisco, and that particular motion states: “If Plaintiffs’ requested preliminary injunction is granted, Proposed Intervenors’ entire industry would be destroyed” and “Not only would that destroy Proposed Intervenors’ entire industry, but it could undo thousands of existing bail surety contracts whose purpose would be declared unconstitutional.” ABC knows what’s going on. They just don’t want you bail agents to figure it all out.

Second, ABC says that it’s worked tirelessly with virtually every criminal justice stakeholder group to oppose the federal suits. Really? Why, then, has virtually every criminal justice stakeholder’s national organization published policy statements advocating adopting a risk based versus a money based system? Believe me, ABC is alone in this thing. It’s their lobbyist working with its member insurance companies’ other lobbyists trying to figure out a way to keep the money rolling in.

Third, ABC says that it’s prepared all kinds of legal documents that it wanted to get into some earlier federal cases, but it couldn’t because those suits were settled too fast. Yeah, right. I’ve been watching ABC for a while now, and it has mostly regurgitated the same tired arguments for the current system (ABC calls them showing the "fatal flaws" in the claims of reformers) and has consistently lost by doing so. It lost here in Colorado, it lost in New Jersey, it lost in New Mexico, it lost in Wisconsin, it lost in Indiana, it lost in Utah, and it’s losing in virtually every state it jumps into. If there are "fatal flaws," as ABC says, don't you think it would win every so often? So ABC will continue to lose – and to take bail agents down with it – as long as it continues to argue for the status quo. “The American Bail System works,” ABC says, but that’s absolutely false. The American bail system hasn’t worked since 1900, which is why we’ve witnessed generation after generation of bail reform since then. Think about it, bail agents, if it were working, would some 25-30 states be calling me asking how to change their entire bail statutes and constitutional bail provisions?  Saying that bail is working when everyone else says it isn’t working makes people think that the insurance companies don’t have a clue.

Finally, ABC says it’s hiring (meaning that it’s using the money that you bail agents give them to hire) “national federal litigation counsel” to try to get into these suits so they can further argue the status quo in court.  Now I used to work for the federal courts, including for the federal court of appeals, and intervening into a suit isn’t the easiest thing to do. Think of it this way. At their core, the suits are challenging judicial bail setting practices (some admittedly delegated). Does that mean we let everyone in the suit who has some remote interest in bail setting? Do we let in the GPS monitor manufacturers? How about drug testers? How about the people who make lunches for the inmates in jail? For goodness sake, if we lower the jail population, that lunch-making industry might fail.  

The bottom line is that the bail industry is tangential to the actual decision to release or detain a defendant. To the extent that it isn’t – meaning to the extent that the bail industry has actually usurped the judicial decision itself – then it shouldn’t be allowed to exist in that form anyway. And what if ABC does get in? Well, even then it’ll probably just keep saying the same old stuff – “money bail works,” “money bail’s fair,” “everyone else is wrong.” They’ll keep spending money to say these things right up until they’re making exactly the same amount of money that they’re paying their last lobbyist. And even then, they’ll probably just hire a cheaper lobbyist. 

ABC wrote a funny line at the end of its document. It said that those of us seeking change are “bastardizing” our criminal justice system and “abandoning the American bail system.” Not true. The changes that we seek – and by “we” I mean people like me and all of those stakeholders I mentioned earlier – are based on fundamental constitutional and historical American legal notions, such as due process, equal protection, the right to bail, and the presumption of innocence. If it takes a federal court to tell the states just how far from these notions they have strayed, then so be it. Moreover, we aren’t abandoning the American bail system. No, we’re just returning to the American bail system that existed before the commercial bail industry got involved, when unsecured bonds assured that virtually every bailable defendant would not be jailed for failure to pay money.      

ABC is spending a lot of time and money to keep things the way they are. The problem is that nobody else in America wants to keep things the way they are. If I were a bail agent, I’d try to figure out how much money I give the insurance companies, and then I would spend that money, instead, on redefining my role in pretrial release and detention in America. There may be a place for private pretrial in America, but the window for finding that place is rapidly closing. By refusing to accurately see the future, ABC is practically slamming that window shut.  

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. 

The Golden Rule and Bail

I’ve been doing bail pretty much full time for about eight years now, and so I’ve decided it’s time for a bit of a break. But having Pope Francis come to America last week made me realize that I couldn’t take that break without one last post to talk about the Golden Rule and bail.

Yesterday I wrote five pages on the Golden Rule and bail, and then I realized that the more I harped on people for not following the Golden Rule, the more I wasn’t following it myself. So let’s leave it at this. If you just follow the Golden Rule at bail, nearly everything else will eventually fix itself. If you don't understand the Golden Rule, or can't seem to follow it even when it's pointed out to you, then you need to get out of criminal justice. 

I’ll point out one specific thing, however, that someone should be able to stop immediately. One of the bail insurance companies – you know who you are – makes fun of how particular defendants look in their mugshots every week. I don’t think you’d like anybody making fun of how you look, so cut it out. I mean, beyond the fact that it’s just plain mean, these people are your potential clients, right?  

Okay, that’s the end of the sermons. A lot of really great people have made their careers working in the important field of pretrial release and detention, but I was never meant to stay all that long. Don't make me mad, though, or I'm liable to come back. :)   

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.