Bail Agents: Insurance Lobbyists Are Not Your Friends

There’s another shake-up in the bail insurance lobbyist world, due, I suppose, to a rapid decline in America’s desire to use an antiquated, unfair, and ineffective system of release and detention based on money. But this time the shake-up reveals more than one issue facing the bail insurance companies. Yes, the use of commercial surety bonds is slowly declining and that business, as it’s currently practiced, will likely become extinct. Even bondsmen websites have re-published newspaper stories saying as much. But the bigger issue concerns how, exactly, to deal with the decline right now. Should they adapt, or should they fight?

The bail agents I talk to understand that despite the decline there’s still likely some place for them in what I call “private pretrial,” which involves persons doing the sort of risk assessment and mitigation that courts and the general public are demanding today. Jurisdictions across America want risk assessment, they want people who can make recommendations to the court, and they want people who can perform at least minimal pretrial supervision designed to mitigate known risk for public safety in addition to court appearance. Moreover, they want all of this for all defendants, and not simply for the ones who can afford it. It’s the kind of stuff that pretrial services agencies and programs do every day, but it’s only happening in about 10% of American counties. Private pretrial, if it’s structured like our current public pretrial programs, is a viable option for jurisdictions that don’t currently have pretrial agencies. Indeed, we have at least one operating here in Colorado, and as far as I know, it’s working pretty well. The bail agents who recognize the potential for private pretrial and who are the first to market will probably make a killing.  

The problem is that there’s no place in private pretrial for insurance company backing because a private pretrial system wouldn’t be based on those big, arbitrary money amounts everyone is used to. Thus, unlike bail agents, there’s simply nothing to which the insurance companies can adapt. Accordingly, the only option those companies have is to fight a war to keep the current system in place.

But to wage that war, the insurance companies need bail agents. They need bail agents to faithfully repeat what the insurance companies say about the benefits of an industry that everyone else in America is questioning. They need bail agents to pass out “studies” that the insurance companies know are flawed. They need bail agents to make ridiculous statements like, “the purpose of bail is only to provide court appearance,” or “pretrial release is a failed system.” And I’m sure they’ll need bail agents even more in the future because they’ll come up with more studies, craft more statements, and hire more lobbyists to keep fighting for a system that gives the insurance companies money for essentially doing nothing.

Insurance companies need bail agents to do everything possible to keep their minds off of the fact that the surety bail system currently hinders release, has nothing to do with public safety, and can hang on only through back-room political deals fashioned by those oily lobbyists. In short, they need bail agents to fight for insurance company profits, and never to dream of a system that doesn’t include insurance company participation, even if that system might save the agents their own jobs.

I’ve always liked bail agents because they believe in the right to bail even more than a lot of judges. But if you’re a bail agent and you want to stay involved in bail, you need to be thinking about your place in the future American system of pretrial release and detention. The insurance companies won’t help you do that because they simply aren’t a part of that future. They have money, though (you know they have money because a lot of that money comes from you), and so you’ll continue to see one lobbyist being replaced by another so long as they can afford it. But just remember, because they have money, they’ll fight to the end – even if, in the end, you go down with them.  

36 Words

I’m not quite sure how this didn’t make the front page of the New York Times, because it’s the beginning of the end of money bail in America. The other day, in a federal court case in Missouri, a judge issued a declaratory judgment containing the following 36 words:

“No person may, consistent with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, be held in custody after an arrest because the person is too poor to post a monetary bond.”

You can read about the case, and hear from my friend who filed it, Alec Karakatsanis, here: http://www.stltoday.com/news/local/crime-and-courts/settlement-in-federal-lawsuit-abolishes-cash-bail-for-velda-city/article_00e68a2a-5edd-5423-abac-1af69ae2f018.html.

These 36 words turn every single thing we’ve been doing in bail in America on its head. For over 100 years, we’ve been using money bail to detain people, both unintentionally and intentionally, and I predict now that it’s all going to end – beginning with these 36 words.

If you don’t believe me, send the words to anyone you know involved in state court bail-setting in America, and ask those people what they’d do if they had to abide by them. After an initial “holy crap” moment, they might say something like, “Well, how in the world are we going to keep those really dangerous people in jail?” The answer is that they’ll have to start employing empirical risk assessment to identify those “really dangerous” people, and then they’ll have to change their constitutional bail provisions and statutes to allow them to detain defendants based on risk. It’ll be an in-or-out system, with none of the arbitrariness and randomness of our current money-based system. It’s a wholly different release and detention scheme, and it has few of the hallmarks of bail that they’re probably used to.

So if you’re in a state that’s grown accustomed to secured money bail, accustomed to bail bondsmen, accustomed to insurance company lobbyists, accustomed to poor people in jail and only rich people out of jail pretrial – essentially, accustomed to the failed way that we’ve done bail and no bail for over 100 years in America, get ready to change. I’ve said it before. If you don’t change on your own, someone’s going to force you. And that force might just come from only 36 words. 

John Legend -- "Value Every Life"

There’s a time in every movement when it becomes a truly national movement. And you can tell when that happens by certain people and organizations getting involved. Most of you have heard all about the various new groups, foundations, and political figures getting involved in bail reform and pretrial justice lately, but I’m talking popular culture here.  

Like last week, when someone from HBO called to ask about bail for a weekly comedy show. I asked what in the world could possibly seem funny about locking up so many people for lack of money, and she said that their show specializes in taking “grim” subjects and making jokes about them. I believe her, and it may be one of the best ways to get the attention of the American people.  

Another way is for our American stars and celebrities to get involved. That’s what Oscar and Grammy Award winning singer-songwriter John Legend is doing. I first saw him say something about mass incarceration at this year’s Oscars. And if you aren’t sure about his commitment, look at this story, describing his new campaign to end mass incarceration: http://www.msnbc.com/msnbc/john-legend-launches-campaign-end-mass-incarceration. Or just run his name along with the words “jail reform” and see what comes up. The story says that he’s putting together other artists to help him out, in addition to organizations committed to ending mass incarceration, and so I really hope that my pretrial friends reach out to him.

John Legend has a giant following, and the people who want to leave bail the way it is, keeping poor and minority folks in jail for lack of money, are going to have their hands full when someone famous and with common sense and empathy for others gets full-on involved.

John recently told some people in Texas to “value every life even if people make a mistake.” Exactly, John. Well said.  

Bail for the Bikers -- Stack v. Boyle II?

Once upon a time in America, government officials arrested 12 persons and charged them with violating the Smith Act, which made it against the law to advocate overthrowing the U.S. government. The Smith Act mostly was used to prosecute communists, anarchists, and fascists – people we didn’t like and who scared us, and these particular 12 people were believed to be communists. A judge, looking at these 12 defendants, set each of their financial conditions of release (some would say their “bail”) at $50,000.

Looking at these bail settings in the 1951 case of Stack v. Boyle, the U.S. Supreme Court ruled that they were unlawful. In particular, the judge didn’t take into consideration any individualized factors that help make those bail settings non-arbitrary, the judge apparently based the amount on a single factor – the charge – which the Court expressly said was an arbitrary act, and that the judge didn't consider any evidence so that the amounts would be “reasonably calculated” to provide assurance of court appearance.

In his concurrence, Justice Jackson elaborated a bit. He said that the practice of admission to bail “is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial.” Instead, he wrote, “the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty.” When presented with the argument that the bail-setting court fixed uniform blanket sums by merely looking at the charge and not at each defendant, Justice Jackson wrote, “If this occurred, it is a clear violation of [federal law]” and that to assume that each defendant was completely identical to each other defendant at least violated the law of probabilities. When presented with the argument that the bail-setting court used the amounts to keep these communists in jail on purpose, Justice Jackson wrote that such a use “is contrary to the whole policy and philosophy of bail.” In fact, we now have appellate court opinions that clearly state that setting bail with a purpose to detain people is unlawful.

Fast forward to this week, when government officials arrested 170 people in Texas and charged them with engaging in organized crime. When we use that charge, we mostly go after people we don’t like and who scare us, and these particular people happened to be in motorcycle gangs. A judge, looking at these 170 defendants, set each of their financial conditions of release (some would say their “bail”) at $1 million. You see where I’m going here, and it doesn’t take a genius to notice the similarities between one of our biggest bail cases in America from 1951 and what happened this week in Waco.

Honestly, if our own judges can’t keep track of U.S. Supreme Court precedent, how are we to improve? Today, we actually know how to deal with extremely high risk defendants. And if any – or all – of these defendants are extremely high risk, then they should be detained without bail. But if they’re high risk, setting money bail to detain them is not the answer.  

I’m weary of explaining why. That hasn’t always the case, as usually the explanation is a new thing to judges, who aren’t necessarily trained in social science research, statistics, or other fundamentals of bail that don’t deal with the law. But I shouldn’t have to explain to a judge what the U.S. Supreme Court has said, or is likely to say, about how to set bail.

The history and the law tell us that both bail (release) and no bail (detention) are lawful if you do them right. In this single act of setting 170 identical financial conditions, this judge simultaneously did both bail and no bail wrong.

     

Baltimore Kid Faces Life -- What About the Judge?

Did you hear the one about the 18-year-old kid who bashes a car windshield in Baltimore with a plastic cone, turns himself in, and the judge sets his financial condition of bond at $500,000?

Here’s one of the many news stories about it: http://www.nbcnews.com/storyline/baltimore-unrest/so-much-money-baltimore-teen-who-surrendered-held-500-000-n351606.

Judges can only set conditions of release for two constitutionally valid purposes – court appearance and public safety. Now, since the kid turned himself in, we have to assume he wasn’t the biggest flight risk, so what about public safety? Well, the problem with public safety is that in virtually every state, Maryland included, you either can’t forfeit a financial condition for new crimes or the law allows a surety to be exonerated from any forfeiture so long as the defendant is in custody. Setting money for public safety when you don’t lose the money for breaches in public safety is irrational, and thus likely unlawful under multiple theories of law that require, at a minimum, rationality by the government. Moreover, after decades of research, we have never shown any link between money on a bail bond and public safety. Quite simply, money won’t keep you safe.

So why $500,000? Was it to punish the kid? If so, it was unconstitutional. Was it to teach him or others a lesson? If so, it was unconstitutional. Was it to keep him in jail? If so, it was unconstitutional. Was he given any kind of a decent due process hearing before being detained through an unattainable release condition? If not, it was unconstitutional.

Which raises the important question; what do we do when judges violate the law? We’re pretty keen on making sure everyone else pays when they violate the law. For example, this kid faces life in prison for breaking that windshield. But what about the judge? Is it too much to ask that judges simply follow the United States Constitution? And what should we do when they don’t? 

Cameras Aren't the Answer

I’m taking a quick break from bail to weigh in on the current, seemingly endless series of incidents concerning law enforcement officers and the public, one of the latest occurring during an undercover sting where I used to live in Tulsa, Oklahoma. A lot of people are rightfully concerned that without cameras, we wouldn’t even hear about a lot of the incidents, like the one in North Charleston, South Carolina, when the officer shot Walter Scott eight times in the back.    

Yeah, it was a good thing somebody had a camera at the scene, because it appears that the officer in South Carolina was getting ready to say something like, “He took my Taser, and so I feared that he posed a significant threat of death or serious bodily harm to others.” These days, you can shoot a guy in the back and get away with it if you say the right thing afterward.

But more cameras, including body cameras on the officers themselves, aren’t the answer. Instead, the answer to restoring the relationship between law enforcement and the people they serve in America is a complete overhaul of practically everything that the officers currently do.

Police departments and other law enforcement entities should start with their mission statements, re-drafting them with the help of citizens so as to memorialize the contract that allows them to carry and use deadly weapons on our streets. Interacting with citizens has to be positive for everyone. I know a police department today that actually punishes its officers by making them work at the department’s front desk where the public comes to ask questions. So when officers screw up in that department, their punishment is to interact with people. How messed up is that? I’ve been to that front desk, and the people working there aren’t the happiest campers on the playground. The whole thing is a fundamental disconnect between the police and the people they serve.   

Law enforcement should also completely change its hiring practices – I know another police department in Colorado that didn’t want to hire ex-military or people with law enforcement experience; instead, it hired waiters, who knew how to serve, and then taught those waiters how to be police. The relationship between the police and the public in that town, by the way, is exemplary.  

Law enforcement should completely change its training, too; the current method of training that involves giving orders and ratcheting up the response based on the amount of resistance to those orders is simply not working. Police and other officers must be taught to diffuse environments, to occasionally back away, and to understand the overall perspective of the situation.   

Finally, law enforcement should change its primary focus, which over the decades has slowly drifted from protecting the public to protecting the officers. This isn’t the first time that we’ve had to question our fixation with officer safety. After Columbine, we recognized that officer safety was secondary to saving people’s lives in an active shooter scenario. Quite frankly, if we’re all that concerned with officer safety, we really shouldn’t allow undercover sting operations to begin with. They’re pretty dangerous.

If I were younger and wanted to create a social science theory describing what people wanted in their police forces, I would call it “the Matt Dillon Theory” of law enforcement. If you’ve ever watched Gunsmoke, then you know that Matt often ran headlong into danger to help people. He faced the bad guys upright and played by the rules. Occasionally, he’d have to shoot it out with them, but only if they’d been warned and decided to shoot Matt first. He never shot women (hey, it was the 50s), drunks, or kids. And he never, and I mean never, shot anyone in the back. In my opinion, that’s the kind of law enforcement officers we all want. What we have, instead, is pretty far from it.

I like cops – I know a lot of cops, and I used to work with cops when I wrote about a billion parking tickets back in the day – but I can’t ignore what’s going on. The biggest public backlashes we get in America are when single incidents reinforce and amplify the public’s notions about what they already believe. The fact that people are taking to the streets to protest these single incidents is because the people generally believe all officers are angry, power hungry control freaks looking for a fight. It’s going to take more than body cameras to change that perception.   

Harvard Law Review Forum Article

The Harvard Law Review Forum just published the article, Policing, Mass Imprisonment, and the Failure of American Lawyers. It is written by Alec Karakatsanis (Equal Justice Under Law), a new friend to pretrial justice, and one of those guys with his feet firmly planted inside court houses in places like Ferguson, Missouri, Clanton, Alabama, and North Charleston, South Carolina.

It touches briefly on the quote from the United States Supreme Court, "In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception," and thus the paper reminds us that a big part of pretrial justice is simply figuring out how to make this statement a reality. 

I know Alec, and therefore I know that even though he uses the term “failure,” he means it to inspire the kind of work that only the legal profession can do. I’m a fourth generation lawyer, and I take no offense. 

Here is the link: http://harvardlawreview.org/2015/04/policing-mass-imprisonment-and-the-failure-of-american-lawyers/