Six Things Showing The Bail Industry Doesn't Care About Victims

Besides saying how much they care about the truth (and yet, not telling it -- see my last blog), the bail industry keeps trying to convince people that it cares about victims. Here are six things showing that it doesn't.

1. The bail industry doesn't believe in (and lobbies hard against) risk assessment tools, which are actuarial tools designed to help judges determine how risky a defendant might be to potential victims. Instead, the industry says bail agents can determine risk by looking at a defendant, and apparently fully assess risk through some sort of process known as the "circle of love," which essentially holds that if you don't have the circle, you must be risky. In the end, the bail industry thinks that people who have money are low risk, and people who don't have money are high risk. Otherwise, it says, those defendants would be out of jail, right? Man, you can't argue with that logic.

2. The industry will bail out anyone no matter how risky. As long as you gots the cash, you're out. Again, this is tied to the industry's perverse way of assessing risk, explained above.

3. The industry refuses to supervise for any defendant behavior other than coming to court. That means that if a person is likely to create a new victim, or violate some condition of release designed to keep people from becoming victims, the bail industry wants nothing to do with it. Getting people back to court is all it cares about because that's the only way it makes money. All its talk about public safety is based on a severely strained logical argument that when people miss court, they automatically go out and start committing tons of new crimes, which is just moronic. The essential business model of the bail industry is only designed to deal with court appearance. Public safety simply doesn't fit into that, and whenever states attempt to make bail agents supervise for public safety (often by forcing them to forfeit money for new crimes), the bail industry fights back. Don't believe me? Ask anyone in Pennsylvania.

4. The industry has made it so that in virtually every state in America bail agents can only forfeit money on a commercial bail bond for missing court. Nobody ever loses money if a defendant commits a new crime. This leads to the perverse situation where a dangerous person keeps getting out on bail, committing more crimes, and keeps bailing out, all without any bail agent or insurance company losing any money. Now I fault judges for this revolving door stuff, too, but the laws keeping the industry from losing money for new crimes come courtesy of the national bail insurance companies. I already wrote about Maurice Clemmons, the poster child for this sort of constant bailing out and creating ever more victims here. He was continually bailed out by a for-profit bail bondsman until he finally killed four police officers. If judges keep setting money bonds for dangerous people, bail agents will keep on helping them get out of jail, no matter how many victims it creates. Oh, and by the way, the industry has made it incredibly unlikely that it will ever actually forfeit any money even for court appearance. Check out most state laws that provide loopholes and numerous extensions and exonerations for the bail industry. And when the industry actually does have to forfeit something, it often sues to keep from coughing up the dough. Most state court bail cases deal with bail agents trying to keep from paying a forfeiture.

5. This whole way of doing business causes, as the New Jersey Supreme Court wrote, "problems at both ends of the spectrum." What that Court meant was that the money bail system keeps certain lower and medium risk people in jail and allows certain higher risk people out of jail. When you keep low to medium risk people in jail due to money, it actually makes them higher risk to commit more crimes. And when you allow certain higher risk people out of jail, you naturally run the risk that they will commit more crimes because, well, they're higher risk. More crimes means more victims. That's what the money bail system does.

6. Finally, the industry lies about what it does for victims. If the industry actually cared about victims, there'd be a few fundamental changes the industry would make in order to deal with criminal activity. The fact is that when the rest of the country decided that public safety was a valid constitutional consideration for limiting pretrial freedom in the 1970's and 1980's, the bail industry simply failed to keep up. Telling the truth to victims means telling them that the industry is only in business to make sure the defendant comes to court. Telling victims the truth means telling them that the industry thinks it can determine risk by how much money someone has. Telling victims the truth means telling them that the industry is quite willing to bail out anyone -- no matter how risky -- so long as he or she has money. Telling victims the truth means telling them that the industry doesn't even care if that person continues to commit new crimes. Telling victims the truth means telling them that the industry has for decades championed laws designed to allow high risk defendants to continue to commit crimes without incurring any liability on bail agents.

In short, telling victims the truth means telling them that the money bail system actually creates victims.

Bail Industry Misleads Everyone About New York Bail Reform

The American Bail Coalition just posted a piece on Facebook saying, "Over 100 Community and Advocacy Groups Across New York Reject the Basic Precepts of the No Money Bail Movement." You can read all about that particular letter to New York's Governor here. ABC even has a nifty "Bail Reform" sign with a big red slash through it, as if to say these people don't want bail reform.

Well, before you like, share, or otherwise believe that particular headline, read this from the same letter: "New York must eliminate pretrial detention and money bail for all misdemeanors and nonviolent felonies." And, "For profit bail bonds must be eliminated." For everything else, the money can't detain. Does that sound like a letter that's rejecting the "no money bail movement?"

Really, if you read this entire letter by these advocates, you'll discover that they're pushing a type of bail reform that is far more radical than even I have pushed over the years. And they are justified in doing so; indeed, even though I presented a model release and detention system last Spring, I specifically took that model out to its edges and wrote that anything more limited than what I presented would be acceptable and perhaps better justified by the law and the research.

ABC knows the letter advocates the elimination of commercial sureties. ABC knows this letter presents a sort of bail reform far beyond what even I have promoted. So why mislead people by acting like it somehow goes against bail reform? Really. Why even post it?

The answer seems to be that ABC hopes that people (and especially bail agents) will only read its headlines, and not dive too deep into the substance of things. In short, ABC wants to make its agents think ABC is winning, when ABC most definitely is not. ABC wants agents to read the headline, share and like it, and then move on -- after sending the insurance companies all of their money, of course. 

Get this straight. The basic precept of the "no money bail movement" is no money bail or, at least, no money bail that detains, and the letter fully embraces that. What it rejects is the for profit bail industry.

Read the letter.

Really, just read it. 

Bail Industry Language

Deal Bail Industry;

I know you've been struggling for 10 years now to find your footing, but I still believe you haven't quite gotten a handle on what you should and should not say about bail. Accordingly, I'm giving you the following advice about what not to say:

You can't say that money bail makes the defendant "accountable" because being accountable is being held responsible for one's actions, and in bail we haven't even proven that anyone has done anything yet. Accountability is a punishment term, so find a better word.

You can't even say that commercial sureties are "accountable" when, in fact, they push off all the liability and costs to the defendants and their families. Commercial sureties aren't accountable for anything. And bail insurance companies are about fourteen steps removed from even that level of accountability. They literally don't do anything.

You can't say that bail is all about "freedom" on the one hand, and then post a billion Facebook stories about all the horrible people who shouldn't be let out of jail. Face it, you'd be fine with them being let out of jail so long as they paid some money. Your inconsistencies are killing you.

You can't say that "bail is constitutionally protected" when you define bail as money or, worse, as commercial bail. Bail as a process of conditional release is protected by the constitution, not money bail or you. We're not trying to get rid of bail -- we're trying to make it the process of release it was always meant to be, and it just so happens that money gets in the way of that.

You can't talk about public safety period, so stop trying. You can't forfeit money on a bail bond for anything but failure to appear for court. You all actually make a lot of money when people commit crimes while on pretrial release so long as they don't skip court, and you know it. I actually heard a bail insurance dude recently try to link his business (court appearance) to public safety by saying, "When they're coming back to court, they aren't committing new crimes." Man, that's just stupid. What does he mean -- does he mean that while they're actually on the bus coming to court they can't possibly commit a crime? You know public safety is your Achilles heel, but it's the bail insurance companies that created that dilemma over the last several decades. They're the ones who always fought when states tried to allow forfeiture of a bail bond for new crimes. They did it again most recently in Pennsylvania.

You can't say, "They're not in jail because they're poor, they're in jail because of (fill in the blank)." Most of the times that you fill in this blank, you fill it in with something the defendant did, which means the money is punishment and thus unconstitutional. And beyond this, saying that they can't afford their charges or criminal history is just another way of saying they can't afford their risk. Not affording their risk means using money to detain, which is unconstitutional whether it's intentional or unintentional. If you don't know what I'm talking about, you need to read my last paper. And, by the way, if even one person is in jail because he's poor, we need to fix the system.

Oh, and quit bringing up Martin Luther King. The fact that he was once bailed out back in the day is beside the point. If he were alive today, I'm pretty sure he wouldn't be a strong advocate for the money bail system. I already wrote about that here.

I'm not going to help you with what to say because I think the bail insurance lobbyists need to figure that out for themselves. Besides, I've told you all enough of that already, and I'm pretty sure nobody listened.

Just a bit of friendly advice!

Very truly yours,

Tim

NCSC Trends in State Courts

Here's a link to the National Center for State Courts' Trends Magazine, the publication put out once a year to educate courts and judges across America about big things affecting the judiciary.

As noted by it's website, "NCSC is the organization courts turn to for authoritative knowledge and information, because its efforts are directed by the Conference of Chief Justices, the Conference of State Court Administrators, and other associations of judicial leaders."  

My article on the inevitability of bail reform focuses on how judges are more involved now than in any previous generation of reform.

You'll note that there are no articles written by bail insurance companies -- rather than to help courts with what's happening, they've decided mostly to fight them.

Bail Insurance Lobbyist Representing You!

Here's a video worth watching.

It shows just how bad the bail insurance companies' strategy to "fight everything" is doing on the ground in places that are actually trying to change. Scroll to about the 3:24:15 mark and see the ex-head of ABC, a bail agent, and some dude from New Jersey, all talking about how nobody should change anything.

The reaction from the City of Philadelphia Special Committee on Criminal Justice Reform is harsh, and shows just how ineffective the insurance lobbyists have become. Ineffective to the point where it gradually became clear that the Special Committee was personally offended by the panel.

I feel bad for the agent -- it's clear that this whole thing was orchestrated by the ex-ABC guy, and the agent was just trying to say what the ABC guy told him to say. But anytime you use the terms "circle of love," "accountability," and other insurance coined phrases, you should really think twice. I mean, do you think taking someone's mother's car is in any way a part of a "circle of love"? And, as I've said many times before, "accountability" is a punishment term, not a bail term. But mostly, people just don't want to hear how great everything is when they've already decided to reform it.

So take a step back and you'll see the overall flaw in the insurance strategy. The City of Philadelphia sets up a Committee seeking answers about how to change, not whether to change. The bail insurance companies respond by saying, "Don't change."

How does that go over? Well, watch and see.

ABC Doesn't Even Know What Bail Is

So I'm perusing the Harris County memorandum and opinion in the federal case, and I see a footnote in which the court says, "Texas's scheme points up a flaw in the amicus brief filed by the American Bail Coalition [and others]. The brief consistently and ahistorically assumes that references to 'bail' always mean a secured money bail with a monetary payment required up front as a condition of release." That's "a-historically," as in, going against or ignorant of history.

Thats 's a pretty big flaw, because it means the bail insurance companies -- the group developing the strategy to keep money bail in America -- doesn't even know what bail is. This flaw is the basis for a lot of the bail insurance companies' flawed legal claims, by the way, and it's the same flaw advanced by the big time law firm they've hired to litigate these cases.

I've written about this many times before, and they've got no excuse because everything the court said about bail -- what it is and what it isn't -- has been spelled out in my papers. But they refuse to read my papers. I'll let you decide whether that's wise. As the federal court in Harris County said, bail is a mechanism of release. As my papers say, bail is a process of release. We have a thing called bail to release people, just as we have a thing called "no bail" to provide a way to detain them. It's really pretty simple.

Bail agents, the insurance companies are not only losing this thing for you, they're losing it without even bothering to figure out what they're even talking about.

One day, as you're turning off the lights one final time, you'll probably think to yourself, "I suppose before we just followed along with the insurance companies' lost cause, we should've  at least checked to see if they could correctly define the word bail."

Just in case, in my next blog I'll define the words "American" and "Coalition."

“Colorado Model” Isn’t Working So Well?

Man, those bail insurance companies will lie about anything, and especially about Colorado. It’s a long story, but they really hate Colorado for three big reasons, and it’s so juvenile that it would remind you of grade school recess if I explained it to you.

Nevertheless, in a recent post, the insurance companies cite to a story about Boulder County (Colorado) District Attorney Stan Garnett’s concerns over public safety in bond setting. They post the article, and then they say, “Apparently, the so-called ‘Colorado Model’ isn’t working so well.”

Once again, though, the insurance companies are misleading people or likely failed to actually read the story they posted. If they’d have read it, they’d have seen that the DA was having a problem with judges continually letting so-called high risk people out on bonds with money amounts that the DA thought were too low.

That’s not the “Colorado Model” – that’s the “American Money Bail Model.”

The DA cited to a case involving a guy named Lobato as an example”

“Lobato is a good example of a guy who comes in, gets a bond of $10,000, which he is immediately able to make, then turns around and allegedly commits another serious offense and then gets a bond of only $15,000 which [he] is also able to immediately make,” Garnett said. “In hindsight, the (first bond) was not set high enough to protect the public.”

All the other examples he cited were the same. People post money, get out, commit new crimes, and then post more money.

That’s the essence of the money bail system in general, and the commercial surety system in particular, both of which allow high risk people to pay to get out of jail, commit new crimes, and then pay to get out again. And, as usual, nobody ever forfeits the money for these new crimes. That particular law – the law that says you can’t forfeit money for public safety – is courtesy of your bail insurance lobbyists working over the past 50 years, and it’s basically the same in every state in America.

Like I’ve said before, the only amount of money that will keep anyone safe is an amount that detains, and that’s unlawful when set to detain on purpose. So, for now in Colorado, we’re stuck with a system – based on the money bail and commercial surety models – that allows high risk people to buy their way out of jail.

So, let’s review. What model was the judge using in the Lobato case? The money bail model. What’s not working so well? The money bail model. What do the insurance companies want us to continue to use? The money bail model.

Again, we here in Colorado know all that, so the post must be designed only to make bail agents think the bail insurance companies are making progress. They aren't. 

  

Bail Insurance Companies Spread False and Misleading Letter

The website “U.S. Bail Reform News,” a pretty weak attempt by the insurance companies to provide slanted information on bail reform, recently put up a post about a Colorado district attorney warning Maryland about bail reform. What they left out tells you something about whether you can ever rely on that site for anything but bogus information.

The insurance companies’ ties to that particular DA’s office go back a long time. I was once in the room when five or six DA’s from that office, along with some bail insurance dudes, were trying to convince our county commissioners to de-fund our pretrial services unit. So back then, as the story goes, the DA in charge got pretty hammered by the rest of the system. He liked bail the way it was – money, money, all the time – and the rest of the system voted him down and made some changes. He was so upset – and I mean, like, upset the way a six-year-old gets – that he never forgot it. Ever since then, that particular DA’s office has done everything it can to try to “go back” to the good old days with money, bail schedules, and DA’s deciding on the amounts, and to “get back” at the people who made the changes. If I listed all the dumb things that office did when it came to getting back at everybody over the bail project, you’d want to barf. Or send them to Washington.

And all that childish pride, that incredibly irrational opposition against everything that is bail reform (including opposition to many things that would help with public safety – the DA actually once said he “didn’t believe in research” or "didn't care about the research," which was something monumentally dumb for a lawyer to say) was just the thing to get the insurance companies excited. So when Maryland came along, those companies got the current DA to write a letter with a current county commissioner and the current sheriff, saying that bail reform failed. I won’t bore you with the details, but there were only a couple things wrong with the letter: (1) it was factually incorrect; and (2) the people who signed it weren’t even around and in any position to comment on it one way or another. The two are related, I suppose. Since they weren’t around when we did stuff, they didn’t know that what they said about it was wrong. The commissioner actually testified before the Maryland legislature about a “10 County Pilot Project” in Colorado. Well, guess what? There was no such thing. It simply never happened. That’s either dumb or . . . no, it’s probably just dumb.

Anyway, a district court judge in that same jurisdiction drafted a declaration about the letter saying: (1) they were wrong; and (2) they weren’t even there. We gave that declaration to Maryland and to the people in Texas, and we continue to give it out to anyone who trots out the dumb letter.

As a side note, it may interest you to know that the bail insurance companies once requested the County to submit to them some sort of document about the bail project. You'll never see that response, though, because the County itself said the bail project was a success. Obviously, that wasn't the answer they wanted. So they went with the letter.  

This whole thing follows a trend I have written about before. The insurance companies will pay anyone to write or do anything to help them, and they really don’t care if what comes out is even true. Then they tell all the bail agents around the country to look at it like it’s some sort of victory, but they never mention the fallout from providing false information to various officials and what happens whenever I correct the record.

All this fighting by the insurance companies – all this desperate use of false information – is why judges are going to simply stop using commercial surety bonds. That’s the fallout. It won’t matter whether you leave money in or take it out. After all, look at New Jersey. All that fighting led to money being left in the mix, but judges simply aren’t using it. This is what’s going to happen around America. And it’s due to the insurance companies’ inability to tell the truth about even stupid things.

“We have a letter!”    

Big deal. We have the truth. 

Bail Agents Leading Bail Reform?

How does the one group of people who's neck deep in bail (i.e., the bail agents) end up completely outside of bail reform? That’s the question I’ve been asking myself lately. 

The answer isn’t all that complicated. It’s because the insurance companies don’t know anything about you, and they didn’t consult you when they decided on a strategy to fight everything in bail reform.

 I’m not kidding when I say they don’t know you. The other day the head of PBUS said you all had been around for 200 years. That’s wrong, and it’s proof that they don’t know your history. Commercial sureties have been around for 120 years, but that’s not a bad thing. The fact is, when commercial bail bonding came about in America’s history, bail bondsmen were the white knights – riding in to fix a system that nobody else knew how to fix. Your predecessors helped America figure out how to get people out of jail who shouldn’t have been in jail to begin with. It was a huge thing, and something you all should be proud of. 

 The point, though, is that the insurance companies don’t even know any of this, and yet they try to speak on your behalf. Now they simultaneously say states should maintain a right to bail, but that everyone who is arrested is a violent criminal and should be locked up. It’s the most contradictory thing I think I’ve ever heard. The other day someone showed me the hashtag, “savebailkeepeminjail.” Only an insurance goofball could dream that up.    

Then there’s that “fight everything” strategy. They probably don’t know this either, but that strategy actually got going in 1965, when Attorney General Kennedy held the first National Conference on Bail and Criminal Justice. There were two people representing the industry at that Conference, and guess what? Yep, they were both insurance guys. The first guy basically said, good luck trying to change anything. He gave no help whatsoever in trying to figure out the kinds of things the participants were questioning. Instead, he just kept saying that the system was great the way it was. In the end, he said: “We do say, however, that the bail bond business is something that will go on forever. It cannot be abolished.” So there.

 The second guy actually said a few things that current bail insurance dudes could learn from. First he talked about the presumption of innocence (you may recall that today’s insurance people used to argue that it didn’t exist at bail). Then he talked about surety bonds being a more equitable than England’s system, which tended to refuse bail altogether in much higher numbers. But in the end, he basically said that trying to change anything about his particular bail insurance industry was socialism, and that it would lead to the socialization of the entire insurance industry and ultimately all industry. Now, I wouldn’t call that figuring out solutions, would you? 

You bail agents could be the people who help everyone figure out what to do next, and yet you have chosen to give your power to insurance people, who don’t understand you, your history, or your potential place in the future of American pretrial release and detention.   

There's no place in that future for insurance companies. They know that, which is why they fight everything. Once you know it, you’ll cut them loose and maybe help everyone with a solution. Think about it – bail agents leading bail reform. It actually makes sense. 

Dear Bail Agents at PBUS:

This week you gather to talk about pretrial release and detention, something your profession has cared about since 1898, and the ancestors to your profession have cared about since 400 A.D. But you are at a crossroads, and I’m writing to give you a warning.

 Those of you who’ve read my blog know that I like bail agents. As I’ve said many times before, the bail agents I know are the salt of the earth, and likely care about the right to bail more than a lot of judges I have known. In my own little world, I have made people really anxious whenever I’ve told a state that there is nothing inherently wrong with private pretrial, that bail agents might have a place in the world of pretrial justice if they simply change their model, and that I probably wouldn’t even mind using money if someone could figure out a way to use it so that it works and is fair.

 But if you’ve read my blog, you also know that I’m not fond of the bail insurance companies or the groups erected to protect them, like ABC and the insurance-plagued PBUS. I have seen them trample not only ordinary people who get in their way, but also bail agents themselves when they stand between those companies and their money. Mostly, though, they’re a problem because they fight literally every effort at bail reform, and thus are a hindrance to pretrial justice. I have repeatedly written that their strategy to fight everything will only bring your livelihoods to a swift demise, and yet they believe that strategy is the only one that has any hope of assuring that they remain in business. That strategy is killing you, but they show no signs of changing it.

 New Jersey is a good example. When reform began, the insurance companies fought hard. No money? Never! Risk assessment instruments? They’re discriminatory and flawed (by the way, insurance companies arguing that actuarial risk tools are flawed is kind of funny, given they use them for literally every other kind of insurance)! Pretrial services supervision? Public welfare! Are there any poor people in jail? Of course not! Do any dangerous rich people get out who shouldn’t? Never! Use D.C. as a model? No, not for anything! What about Kentucky? They’re worse! 

 But what did all that get them in New Jersey? By all accounts, the potential demise of commercial bail bonding in a state that left money and bail agents intact. So now the insurance companies have a PR firm and are manufacturing stories about success, because most everything is going south. Just stop and think for one second – can you see where fighting literally everything a state is proposing can lead to that state thinking that the insurance companies simply aren’t being reasonable?  And the states are learning pretty fast that even if they listen to the insurance companies, those companies sill fight them later on. People are simply sick of the message the insurance lobbyists are giving. That’s why even though the New Jersey judges can still use money, they just don’t want to. That’s the insurance companies’ doing.  

 You’re going to hear a lot of upbeat messages this week about the bail wars. They’ll tell you how they asked to file a brief in Harris County, but they won’t mention that it’s recycled from the 11^th Circuit and is unlikely to even be read by a district court judge except for comic relief. They’ll tell you they argued in Maryland, but they won’t tell you they lost the argument (well, they’ll say they added secret, last minute compromise language that will save the industry, but you can read the gist of it here). They’ll try to convince you that the new administration and Congress will bring an end to the reform, but they won’t tell you we have bipartisan support from groups as diverse as the Kochs and the ACLU. They’ll tell you that PBUS sent a letter – just yesterday – to the Ohio Sentencing Commission, and then I suppose it will dawn on them that the same day they trashed me by name on their website. Do you think the people from Ohio will look at one and not the other? I know those people, and they know me. Heck, I was on the email list that received the PBUS letter. So, overall, do you think that was a good strategy – “Please help us, but look at what we do to people who don’t?” Ask your PR firm. People remember these things and they all sink in. You’re going to hear a lot of upbeat things, but only because you keep them in business.
 

Don’t be fooled, bail agents. They’re using your money to fight everything that comes their way and hiring a PR firm to make you think they’re winning. They have to, because they’re not winning, and the alternative – to help bail agents survive this generation of bail reform – is not part of their strategy. But the reality is that there’s simply no place in the future of American pretrial release and detention for bail insurance companies. Those big numbers are coming down, and if you don’t have big numbers, you don’t need insurance. Their demise was bound to be messy, but you don’t have to let them drag you down.   

You all need to hire someone really smart (heck, hire the insurance lobbyist – he’s really smart), and tell him or her to think outside the box, ditch the “fight everything” strategy, and see if he or she can somehow convince all the other states to forget about all the previous nastiness and to take you seriously as a part of the system. The insurance companies will never do that for you. ABC and PBUS will never do that for you. Here’s the warning: you need to break loose, or you’ll be out of business. You know what I’m talking about.  

Bail Insurance Companies Getting Into Fake News?

Man, I never thought I’d ever use such a stupid term as “fake news,” and my dad knew Nixon.

 But recently I’ve seen the bail insurance company posts with all these stories about how horrible everything is in New Jersey, and I noticed that they were all coming from one source – Shore News Network. I mean, it was literally the only outfit saying these things, and the things it was saying were pretty much the opposite of what I was hearing both from people high up and on the ground in New Jersey. 

So I checked the source. On its face, Shore News Network looks a bit like a legitimate news organization. But then I realized that it’s really just one blogger and a couple of staffers. This is how the Shore News Network describes itself: 

The Shore News Network is a news collective that ties global news providers with fair and balanced local community news at the Jersey Shore. In operation since 2008, the Shore News Network is an open-public news source that allows news content creators at the Jersey Shore a place to safely publish their news in a manner that is free of editorial distortion. 

Okay, I’ve been around awhile, and so I know that when someone talks about being “fair and balanced,” they’re probably feeling defensive. It’s like when you have to constantly tell people you’re cool.

 And when someone talks about “open-public news” with stuff from “news content creators,” I know exactly what’s going on. People provide stuff that’s not “news” (even though they think it should be), and it ends up kind of looking like “news” because the blog calls itself a “news” source and uses the word “news” in its name.

 In this article, the author describes Source News Network as a “GOP aligned political commentary blog.” So that’s all it is. A blog. Like this one. Well, not completely like this one because I don’t claim to be news and I don’t take any money.

 This all reminds me of when the bail insurance companies practically ran ALEC, the nefarious black-bag group with members like the tobacco companies hell bent on teaching kids how to smoke. Hey, I’m not kidding about the smoking thing – just read this.

 The bail insurance companies were super deep into ALEC, and before we outed them, they used the ALEC machinery to boost money bail whenever and however they could. I remember one time a bail insurance dude said in a speech that he had drafted an article questioning the efficacy of pretrial release agencies, but “got [ALEC] to print it as an ALEC piece because we didn’t want it to come from a bail bonding organization – we wanted it to look like it came from some neutral, political source.” Not too smart to brag about it in a speech, but pretty slippery stuff, huh?

 Oh, and hey, bail agents, the fact that the insurance companies stick the  Shore News “news” on their websites isn’t just to sway public opinion in New Jersey. It’s also designed to make you think that somehow the bail reform train is falling off the tracks so you’ll keep sending them all that money.

 You get it, right?  It’s . . . supposed . . . to . . . give . . . you . . . hope . . . so . . . you . . . won’t . . . question . . . their . . . strategy.  

 In fact, consider this. One of the bail insurance lobbyists posted something just yesterday claiming that bail reform in New Jersey was all messed up, trying to spin a message that said, “Hey, it’s okay, because pretty soon bail reform will go away.” But underneath that post was another one with a frantic comment saying, “Bail reform is everywhere – it’s closing down offices – we need help, money, research, etc.” That comment summed it up. Bail reform isn’t going away.

 By the way, that same post also tried to give a bit of hope by saying that the New Jersey Council on Local Mandates would soon be giving a favorable ruling on New Jersey bail reform. Well, guess what? They gave that ruling in December and it wasn’t favorable to the industry.  

 Yeah, I know we live in 2017, and so I guess I shouldn’t be surprised when news is manufactured to suit some partisan, moneyed interest. But it shouldn’t be that way, you know? News should be news. I figure this whole thing is linked to some big master plan the insurance companies developed with that PR firm they hired.


 All in all, this whole Shore News Network thing makes me think that something is smelly on the Jersey shore. Free of editorial distortion, maybe, but still really smelly.  

American Bail Coalition’s PR Problem

Well, you know when someone has a public relations problem; it’s when they hire a big PR firm. ABC did that recently, and now that firm is peddling ABC’s lobbyist, offering to bring him all over the country for interviews about the horrible mess they call bail reform.

So what’s the problem? Well, for one thing, there’s no mess. Bail reform is going quite nicely, in fact. And that's a problem for ABC. 

So ABC’s PR company sent out a letter that lists a bunch of scary people who got out of jail in New Jersey without posting money bonds, and somehow the company hopes that people will think that’s some sort of travesty.

But they forgot to mention a couple of things in that letter. Like, they forgot to mention that, in the past, those same people would have been released by paying money to a bail agent, with no risk assessment or supervision. They forgot to mention that, in the past, if those people committed a new crime, neither they nor the bail agents would lose any money. They forgot to mention that, in the past, the judge would probably then just set another money bond and the same thing would happen again. In short, the old system in New Jersey was just a mess, and bail reform is cleaning it up. Oh yeah, and they forgot to mention that none of these scary people have done anything wrong while on release. Man, that is a PR problem!   

But really, ABC doesn’t need a PR company. It needs help keeping its story together. I mean, first it says that everyone has a right to bail, and then it acts like all the people they list are too dangerous to release. There’s oversight and accountability with a money bond? What kind of oversight? A bail agent with a contract to take someone’s mother’s car if he skips? In New Jersey, the new system has created an entity to supervise defendants for court appearance and public safety based on conditions designed from actuarial risk assessment. What kind of accountability? The fact that the guy’s family put up a jet ski? In New Jersey, the new system makes defendants accountable through pretrial supervision, sanctions for violations, ratcheting up conditions, and the possibility of new charges.

The Big PR Problem that ABC has is that the future of pretrial release and detention in America doesn’t include insurance companies that can afford to hire big PR firms on bail agent money but that never pay out on bail agent claims. The insurance companies’ problem is that bail reform is inevitable, and that due to their own lobbying efforts over the last several decades, they’ve ensured their own demise.

You know what? ABC won’t even know what I’m talking about when I say this, but the fact that they think bail reform is something that PR can solve, means that they’ve already lost. 

Those Disingenuous Bail Insurance Companies

If you look on the various websites from the bail insurance companies, they’re full if “shocking” accounts of so-called dangerous people being let out of jail in New Jersey, presumably in an attempt to scare people away from bail reform.

Of course, the insurance companies don’t tell anyone that if the judge would just put a bit of money on someone’s head, they’d be glad to help them get out of jail no matter how dangerous they are. We all remember that’s how it worked before, which is why those companies are getting their hats handed to them lately. Saying that the new way of doing things is somehow a “public safety concern” when there is nothing that bail insurance companies do or have ever done to protect the public is pretty sad.  

Under New Jersey’s new bail law, if someone is truly a danger to the public, he or she can be detained without bail. In the old days, those dangerous people would just pay some money to get out and – get this – if they broke any laws while they were out on bail, they wouldn’t even have to forfeit the remainder. That little glitch in the system was brought to you by – yes, that’s right – the bail insurance companies.

Over the last several decades, the bail insurance companies have systematically helped to erect a system that keeps them as far away from defendant behavior and public safety as possible. So they really shouldn’t be surprised that when a state starts really caring about public safety at bail, it’d leave them out. This is just an example of chickens coming home to roost.  

Two idioms in one post?

Must be the caffeine.

What Would MLK Say?

Leave it to the bail insurance company lobbyists to spin a holiday like Martin Luther King, Jr. Day.  On Monday, ABC posted a nice little story about a guy who once bailed out Martin Luther King. If you read the article, you’ll see that King’s bail out was just a single noteworthy episode in one man’s long and interesting life. No details or anything; just that it happened. I suppose ABC wants people to think, “Hey, look at us. We bailed out Martin Luther King, Jr. We’re great!”

But there’s another guy who bailed out Martin Luther King, and that story’s more telling. In 1963, King was arrested for conducting a parade without a permit in Birmingham, Alabama, and was told he couldn’t leave jail without posting $5,000. Who knows, maybe that amount was appropriate for a permit-less parade, right? Maybe the Reverend Martin Luther King Jr. was “high risk” to flee or commit serious or violent crimes while on pretrial release. Maybe he had “burned all his bridges,” as the insurance lobbyists like to say, because the $5,000 kept him in jail. Nope, none of that.

A.G. Gaston bailed out King, but only after convincing him that the civil rights movement needed him more outside of jail than in. You see, King wanted to remain in jail to highlight an unjust system. It was part of the “jail, no bail” policy started in 1960 by activists who reasoned that paying bail or fines indicated an acceptance of an immoral system and also depleted their resources to participate in the movement.  

So King got out, but not before he wrote his famous “Letter from Birmingham City Jail,” in which he explained to other clergymen why he chose to travel to places far from his home to willfully disobey what he considered to be immoral laws. As King wrote, “I am in Birmingham because injustice is here.”

The thrust of King’s letter goes to the heart of what it means to do civil disobedience. People have a moral responsibility to obey just laws, King wrote, but they also have a moral responsibility to disobey unjust laws even as they pay the price for doing so. Quoting Saint Augustine, King wrote, “An unjust law is no law at all,” and to prove his point, King pointed to numerous atrocities committed by Hitler’s Germany, all of which were legal, just as helping Jews or other enemies of Hitler was deemed “illegal.” King wrote: “To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.”

I defy any bail insurance company to argue how America’s bail laws – which base freedom and liberty on one’s wealth – are in any way rooted in eternal or natural law. These laws were created by a class of persons who had money, with no thought whatsoever as to how they might degrade the human personality and spirit through their implementation. We are beyond explaining how money is unfair and doesn’t work. To the extent that governments continue to allow money bail despite these facts means that they are willfully committing immoral acts against their own citizens, a reality that cannot be allowed to continue.

King had more important things to talk about in his letter than bail – homes and churches were being bombed, people were being killed, and the government was condoning a “brutal” form of segregation that required drastic action to curtail. But if he were alive today, I’m convinced that King would be the first to say that even though America’s bail laws are “legal” in the sense that they were once passed by our nation’s lawmakers, they are nonetheless unjust and immoral.

That’s why people are traveling across America today to fix our broken bail system. King traveled to Birmingham because the injustice was in Birmingham. We travel, too, to find and fix injustice.  

Harris County Bail Case

The bail insurance companies have been traveling around the country trying to convince people that their briefs in the 11th Circuit show how the law is on their side in these federal lawsuits.

Three days ago, though, the Federal District Court for the Southern District of Texas filed a memorandum and opinion in a suit against Harris County over its bail practices. In that 78 page opinion, the Chief Judge disagreed with several of the same claims you'll find in the 11th Circuit briefs. Rational basis instead of strict scrutiny? Dead! Use 8th Amendment analysis rather than Equal Protection? Dead! Younger abstention? Dead! Neidermeyer . . . ?   You get the gist.

Next up is a motion for preliminary injunction in the Harris County case -- you know, the thing the plaintiffs won in the 11th Circuit that forms the basis of that interlocutory appeal.

The insurance company lobbyists like to claim that all the previous settlements are due to the small jurisdictions begin overwhelmed, but you wait and see. Once plaintiff's attorneys start deposing the defendants, including judges, even a big place like Harris County is going to find settling simply to follow the law much more palatable.

A Big Week

A few weeks ago, the insurance company dudes trumpeted their brief in the 11th Circuit Court of Appeals. This week about seven groups filed briefs for the other side basically saying that the ABC brief was full of it. No slouch groups, either. The United States Department of Justice, the Southern Poverty Law Center, the Pretrial Justice Institute and NAPSA, and the American Bar Association. And that's in addition to the appellee brief, which blows the City's brief out of the water. I used to write court opinions for the 10th Circuit Court of Appeals, so I'm sort of used to assessing briefs.  

Oh, yeah, and I filed one too. I did mine for free, by the way, and I took great care to point out to the court how ABC was intentionally misleading it. That's something it probably didn't mention to Paul Clement when it asked him to be their lawyer.

Also this week the state of Arizona issued it's report about bail, fines, fees, and costs. The Chief Justice is running that show, and everyone is on board. Of course, PBUS says, "don't believe this bunk." Really? Did you see who signed off on that report?

Well, you better believe it. I can't even keep up anymore. The insurance companies only tell you about the two things that they do (including interviews on 10 watt talk radio stations), and they leave out the 50 things everyone else is doing, like big time state reports led by a Chief Justice.

When you're in as deep as me, you occasionally have time to talk to others about sort of tangential things. Like the other day. I was with a friend of mine who's also neck deep in bail, and we both started talking about what we would do if we "switched sides." You know, if we decided to cash the big check and go work for the insurance companies. It turns out we actually know at lot that would help the industry stay afloat. The weird thing is that the insurance companies have never even tried any of our ideas.

One particular idea, though, really got my attention. It was what I would call a "pure genius" move, and simply by doing it, it would keep commercial bail flowing in America for another 20 years. I hadn't really thought about it before, and the bail insurance companies certainly haven't thought about it. Their strategy is to fight everything. Call everything bunk, like that'll make it go away.

Tell you what. I'm not going to say what the genius move is, but I'll write about it if I ever see it. Here's a hint. If you were at the 2011 Conference on Pretrial Justice, someone mentioned it in passing. Does that help?

Overall, I'd say this has been a pretty big week.

PBUS Elected the Wrong Person

“People are not in jail because they’re poor. They’re in there because they broke the dang law.”

With that one quote in a recent Marshall Project article, the head of PBUS just proved to the world that she knows little about bail, and that she’s bought into the bail insurance company slash and burn rhetoric designed to fight literally any changes to the status quo.

Let’s get this straight, because I know deep down that bail agents care about release. When America started running out of personal sureties, it was commercial bail bondsmen and women who stepped up to help. When judges set amounts of money that were unattainable by most defendants, it was bail bondsmen and women who stepped in where even the Excessive Bail Clause could not, and tried to make sure that people could still get out of jail. Yeah, I know that states gradually started putting insurance companies in the mix (slowly turning the bondsmen and women into agents), but it was the spirit of those early bail bondsmen and women, who really cared about the right to bail, the presumption of innocence, due process, and pretrial freedom, that should be the enduring spirit of bail agents today.  

It’s the bail insurance companies that don’t know what they’re talking about. It’s the bail insurance companies that once wrote that they didn’t believe in the presumption of innocence. It’s the bail insurance companies that don’t believe in risk assessment even though they use it for every other form of insurance. And it’s the bail insurance companies that are now starting to peddle the moronic line, “the defendant is in jail because he broke the law.” Bail agents should look at this sort of statement and say, “No, this person isn’t convicted yet, and so we should all do what we can to see that he or she is released, because, after all, we live in America.” At that point, we’d disagree about how to do that, but you get what I’m saying, don’t you?

By parroting the bail insurance company line, PBUS might as well just be a shill organization for those insurance companies and ABC. And, really, those guys could care less whether you bail agents survive so long as they keep making their money.

The insurance companies could be helping you, agents, but they aren’t. You know that, and I know that because I’m a part of various projects begun in the wake of insurance company fights. The weird part is that I can actually visualize a future with bail agents taking a giant part in productive bail reform, breaking away from the insurance companies and talking about how to effectuate pretrial release and detention without the kinds of astronomical amounts that require freakin’ insurance companies to back.

But I can’t expect that from PBUS anymore. No, PBUS elected the wrong person. 

Did They Post Something About This?

While the bail insurance lobbyists were busy touting the filing of an amicus brief in an 11^th Circuit Court of Appeals case (big deal, by the way – I read that brief and it contains all of the same tired arguments that have failed everywhere else, so they really should stick to their specialty of backroom lobbying), this happened. 

Among other things, this settlement calls for the end of money bail on all misdemeanor offenses in Jackson, Mississippi. 

Hey, Bail Agents, Did the Insurance Companies Blog About This?

You bail agents are certainly getting a lot of stuff handed to you through the various bail insurance websites and Facebook pages. If that’s all you end up reading, you’re probably going to think that they’re winning their battle to keep the status quo. But here's a link to an event those insurance company lobbyists probably didn’t blog about. It’s the Washington Supreme Court’s Minority and Justice Committee’s hearing called, “Pretrial Justice: Reducing the Rate of Incarceration.”

This takes a bit of time to watch – over 3 and a half hours – but if you do, you’ll start to get a feel for how this whole reform business is going. Think about who was in the room: Supreme Court Justices. Think about who wasn’t in the room: bail insurance lobbyists lamely trying to push their various “research studies” concerning money bail. I suppose if those studies were any good, someone else might have mentioned them, but that didn’t happen. Instead, if you watch the video you’ll hear some interesting quotes, like:

“Money bail clearly does not work.”

“I do not believe in money bail. It does not work.”

“Although it may be possible to design a money bail system that does not regularly violate the constitution, we haven’t seen it yet.”

These types of investigations, hearings, and exploratory educational efforts are popping up all around the country. So many that I’m having a hard time keeping up with them.

So ask your insurance companies what their strategy is to lobby state Supreme Courts. More importantly, ask them what they’re going to do when everything does change. Remember, there may be a place for bail agents in the future of American pretrial release and detention, but there’s no place for bail insurance companies. That’s why their goals are not your goals, and it’s why their strategy is only hurting you. 

Bail and Human Dignity

Here’s a link to two pretty great reports put out by the John Jay College’s Prisoner Reentry Institute and the Arnold Foundation. The first is called, Pretrial Practice: Rethinking the Front End of the Criminal Justice System, and the second is called, Pretrial Practice: Building a National Research Agenda for the Front End of the Criminal Justice System.

I was at the conference leading to the first report, and a bunch of us submitted papers. Interestingly, though, the whole thing started revolving around a single issue, which was the need for more human dignity in the criminal process. It began with a discussion of Jonathan Simon’s paper on pretrial dignity, and pretty much continued on that theme for the rest of the conference.

I only mention that because I see that ExpertBail, a network of so-called “professional” bail agents created by AIA Surety to challenge the public’s negative perception of those agents, continues to post pictures and make fun of how defendants look on its Facebook page – pretty much the opposite of caring for human dignity.  

Do you really wonder why the insurance companies are losing this fight?