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

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

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

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

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

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

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

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

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

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

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

Sandra Bland: Her Bail Amount “Was Not Significant”

No, I didn’t say this – a bail insurance company lobbyist did. The quote, in full, is actually, “The issue of bail had nothing to do with this person’s suicide, in my opinion. The amount was not significant and the family was working with a bondsman to post bail.”

This gives you a bit of insight into the people behind our traditional money bail system. Bail insurance company lobbyists could really care less about the humans who bear the brunt of a broken system of bail in America. Let’s break this quote down.

“Not significant?” Well, it kept her in jail, so I think that’s pretty significant. The most interesting conversations I have with commercial bail people happen when they talk about amounts that are “significant” or “reasonable.” Some time ago, a commercial bail guy came to our local county justice meeting and, with a completely straight face, said, “The other day I saw a judge set bail at $50,000, which is reasonable, but another judge set another bail at only $500, and that’s just wrong.” To a bail insurance company lobbyist, amounts are reasonable when they can make money off of them, and they’re unreasonable when they can’t. And only an overpaid lobbyist could ever say that a $5,000 financial condition isn’t significant.  

“Working with a bondsman?” Well, there’s an article out there saying that some bondsman actually called Sandra’s mother, but that was it. I assume the phone call went something like this: “Your daughter’s bail is $5,000, so to get her out of jail you’ll have to come up with a $500 non-refundable fee for me and then put up some collateral to cover the rest.” These kinds of conversations happen every day across America, and they’re why it takes an average of 10 days for people to bond out through commercial sureties. And in those ten days, research has found, a lot of really bad things can happen.

“The issue of bail had nothing to do with [Sandra’s] suicide?” The bail insurance guy says that “there were clearly other issues [going] on in this person’s life.” What kind of issues? Everybody has issues going on in their lives, and no matter how significant those issues are, you can bet that if the person is stuck in a cage, incarceration is issue number one.  

This is the problem with bail insurance companies – the groups who lobby hard to keep the commercial money bail system alive in America – they simply don’t have any compassion or common sense. It’s a problem that we’ve had with this industry ever since we created it in 1900. And it’s a big problem in Texas, which is kind of an enclave for bail insurance companies and the lackeys that these insurance people hire to try to muddle and spin the tragedy of money bail.

Let’s face it. There’re at least three big issues that need to be addressed concerning the death of Sandra Bland: (1) her arrest; (2) the nature of her detention; and (3) the money bail that kept her in jail. Because bail insurance companies make money on number three, they’ll be hoping that everyone – including you – will focus only on numbers one and two.

Don’t do it. 

Sandra Bland and the Tragedy of Money Bail

I’ve been around my share of death and dying, and so I can’t begin writing about such a tragic event as this without first offering my prayers to the friends and family of Sandra Bland. I’m truly sorry for your loss, and to the extent that God can use this horrible event to open the eyes of the ignorant and to save others, then I hope that you’ll understand my need to write about it.

A lot of people have written about possible law enforcement and jail staff abuse and missteps, but let’s be clear here: this case is also about money bail and the use of an insidious hallmark of the money bail system – the bail schedule.

In America, we have a system of justice that requires and thus includes gatekeepers – judges – who, through their neutrality, objectivity, and oath to follow the constitutions of their states and of the federal government, are asked to right wrongs by balancing the actions of the government with the liberties afforded to America’s citizens. At the very beginning of a criminal case – any criminal case, and especially a criminal case that maybe shouldn’t be a case to begin with, judges must hold a prompt first appearance, find probable cause for the arrest, and set bail. In Texas, people have a right to bail, except in limited cases, and the U.S. Supreme Court has equated the right to bail broadly as “the right to release before trial,” and “the right to freedom before conviction.”

Criminal justice may never be arbitrary, and to keep things non-arbitrary, we use standards. By having a set of standards and applying those standards to each individual defendant, we make sure that criminal justice practices and punishments remain non-arbitrary and thus lawful. The best example of this is in death penalty jurisprudence. The Supreme Court has said that the death penalty may never be arbitrary, and so we have cases articulating how to create lawful standards so as to separate those defendants who might receive that penalty from those who might not.

The same is true in bail, which is why the U.S. Supreme Court in 1951 said that, “because the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant.” And when the American states read this quote, they knew exactly what the Supreme Court was talking about. Accordingly, across America, states inserted into their bail laws what I call “individualizing factors,” which typically require judicial officers to look at each defendant using various criteria to determine bail. Texas, which has a pretty lousy bail statute, nonetheless has a provision based on individualization. It’s not as good as other states, but it nonetheless says that whenever a judicial officer sets the amount of bail, he or she must take certain things into account, including community safety based on the alleged crime, the defendant’s financial ability, and the nature of the crime – all factors that can only be ascertained through an individual assessment of the defendant. The statute also says that “the power to require bail is not to be so used as to make it an instrument of oppression,” but that’s a whole other blog.

Instead of following this statute, however, apparently the four justices of the peace in the county in which Sandra was arrested decided to create what we call a “bail schedule.” Bail schedules are documents ranging from one to 100 pages that typically include only a charge and an amount of money corresponding to that charge. Under a system based on a bail schedule, all defendants, despite whatever individual characteristics they have, pay the same amount to get out of jail. I’ve written about bail schedules for as long as I’ve been studying bail, and I believe that they’re unlawful for a number of reasons and under a number of legal theories.

We’re beginning to see that the use of secured money conditions (requiring people to pay money in order to get out of jail) is unconstitutional. But setting those conditions pursuant to a bail schedule is what I call “super-unconstitutional” (a word that’s perhaps only fitting in the world of bail). By using a schedule in the case of Sandra Bland, the justices of the peace ignored their own statute, ignored the U.S. Supreme Court opinion emphasizing the need for individualized standards, and even ignored our well-accepted notion that criminal justice may never be arbitrary.

And because of that willful ignorance, Sandra Bland sat in jail when she didn’t have to.

The government claimed that Sandra violated the law and so it was ready to run her through the machine to prove it to be true. But the justices of the peace violated the law, too. What are we going to do about them? 

Pennsylvania Lawmakers Back Commercial Bail?

I should call this “Bail Agents: Insurance Lobbyists Are Not Your Friends, Part II,” as it illustrates exactly what I wrote about last time.

In a recent blog, a bail insurance company lobbyist wrote that by enacting SB 397, Pennsylvania lawmakers somehow showed support for commercial bail. I don’t think so, and if you read it, I don’t think that you’ll think so either. In fact, everything I read indicates that Pennsylvania was trying to add regulations to the bail bond industry “by requiring that all bail bondsmen play by the same rules,” according to the sponsor, Rep. Bryan Cutler. Clamping down on an industry through additional regulations isn’t really “backing” it.  

So what did the legislation do, and why do the insurance companies like it so much? Well, the biggest thing it did was to require all bail agents to have insurance company backing – or, as the lobbyist put it, “to be appointed by an approved surety insurer.” God forbid there should be any bail agents in Pennsylvania without insurance company backing, and so this bill fixed that. The whole thing is a pretty good deal for the insurance companies, and it might be a good deal for bail agents and the people of Pennsylvania except for one thing: having an insurance company back a bail bond doesn’t do anything for anyone because the insurance companies never pay any losses.

They even admit to this. In fact, the bail insurance companies are so confident about their place in the system that one lobbyist recently bragged to a reporter for Mother Jones that the lobbyist’s company had been in business for 107 years and never once – NEVER ONCE – paid a single forfeiture. So bail agents are required to have insurance company backing, but is there really any backing if they never pay? It’s free money for the insurance companies, which is why they’re fighting so hard to keep it rolling in. 

So, then, if insurance companies don’t pay, who does? Well, defendants, defendants’ families, and bail agents pay, that’s who. If you’re a bail agent, you already know that, just like you know about buildup funds. In the surety bail system we have today, bail agents do everything, they’re on the hook, and they’re expected to drop bags of money on the steps of the insurance companies or face the consequences. If it looks a bit like the Godfather Part IV, it is. Deep down, bail agents know that they don’t need any help from insurance companies, no matter what those companies tell the state legislatures.   

So don’t let these lobbyists tell you that SB 397 did anything good for bail agents, and for goodness sake, don’t let them tell you that the whole thing showed that Pennsylvania “backs” commercial bail. This is the twisted world of the bail insurance companies, which help lawmakers put restrictions on bail agents designed to make the insurance companies money, and then try to sell it to bail agents at the various conventions. Your honor, I refer to the case of lipstick versus pig.

Bail agents, this is your one and only chance. If you really want to have a place in the world of American pretrial release and detention – if you truly believe in private pretrial partnerships with public criminal justice systems – don’t listen to the insurance companies. The future of American pretrial release and detention, public or private, does not have a place for bail insurance companies. They know this, and so they’re going to fight to keep everything the same until the end. But just remember, they're not your friends, and their fight is only going to take you down.

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.