The bail insurance companies
continue to search for a reason for their existence. In its latest post, one
bail insurance company says, “The bail industry . . . has always been about
justice for the victim.” It has nothing to do with release, he says: “The bail
industry doesn’t release defendants from jail.” No, now it’s all about the
victim. This is a huge shift from other purposes the bail industry has floated
in the past. But let’s just see how that industry stacks up with victims in the
representative case of Maurice Clemmons, a case that is horrible, but
indicative of one of the big problems with money bail.
Clemmons had a long and
violent criminal history, and at one point he was sentenced to long prison
terms. In 2000, Governor Mike Huckabee of Arkansas commuted a 108 year sentence
to 47 years, making Clemmons eligible for parole. Violent crimes, parole
violations, and further paroles followed. Then, in 2009, he was arrested for
assaulting two police officers. Without any risk assessment, without seeing a
judge, and without any supervision, Clemmons was released on that charge by
paying a bondsman a fee for a $40,000 bond. Oh, and I’m pretty sure that when
that particular transaction occurred, nobody checked with the alleged victims
in the current case, or uttered a single word about future victims. Clemmons
just paid and he got out.
Within just a few days, Clemmons’
mental state worsened, and police arrested him for raping two children ages 11
and 12. New crimes, new victims. When the judge set Clemmons’ new bail amount
at $190,000, he apparently believed Clemmons would stay in jail. After all, he’d
been evaluated by two psychologists, who said Clemmons was dangerous and likely
to commit further violent acts, and it seemed unlikely that anyone could afford
a nearly $20,000 fee to get out of jail. Nevertheless, apparently giving
Clemmons a discount from the usual 10% fee, a bail bondsman helped secure
Clemmons’ release. Now I’m not certain, but I doubt very seriously that anyone
from that commercial bail bond company talked to any of the previous victims in
any of Clemmons’ cases, and they certainly didn’t seem to care about any future
victims.
Future victims? Oh, yes,
that’s how the story ends because within one week, Clemmons traveled to
Parkland, Washington, walked into a coffee shop and shot and killed four police
officers who were getting ready for their shifts.
As in virtually every other
state, in Washington State you can’t forfeit the money on a bail bond for
anything but failure to appear, so I’m assuming that the bail bondsmen covering
the $190,000 didn’t lose any money on this deal.
And that, my friends, is how
the bail industry truly deals with victims. In short, it could care less.
And my conclusion comes from
personal experience, too. I’ve watched thousands of bail settings, and I’ve
seen both prosecutors and police speak about victims. I’ve heard victims speak themselves.
Heck, I’ve even seen victims ask the court to let the accused out. But I’ve never
once seen a commercial surety say anything even once in any bail setting, let
alone about a victim. Just today I’m reading that the man who went on a
shooting rampage in California was out on a bail bond with something like a $160,000
financial condition. You tell me how in the world the bail insurance companies
helped any of the 14 dead and injured in that case, let alone the guy the
shooter allegedly stabbed before he went nuts. Wait until this all shakes out –
I predict bad things for money bail due to this case.
In fact, if anyone out there made
money in bailing out Kevin Neal, why don’t you just give all that money back to
the various victims you care so much about. Then, start doing that every time
someone commits a crime while on pretrial release. Heaven forbid, right?
Anyway, with that one bogus line
about its purpose being justice for victims, the bail insurance company
lobbyist has also apparently given up altogether on the bail industry’s
otherwise noble purpose that existed since it began: to assure the release of
bailable defendants so as to uphold notions of American freedom and liberty
inherent in our system of pretrial release.
The bail industry’s (and,
indeed, bail’s) articulated purpose has never been about justice for the victim;
its purpose has always been based in the constitutional and statutory rights of
all American persons to be free while facing charges in our criminal justice
system. For a while in American history, lots of people were being held despite
being “bailable” under current law. The bail industry was this country’s
solution to that problem. Surely, we’ve always cared about victims of crime,
even to the extent of enacting victims’ rights amendments to state
constitutions and preventive detention (no bail) language to keep truly
dangerous defendants in jail. But bail (release) has always been a defendant
right, and it was always meant to mean the right to release.
In Stack v. Boyle, the case in which the Supreme Court equated the
right to bail with “the right to release” and “the right to freedom before
conviction,” Justice Jackson wrote: “The practice of admission to bail, as it
has evolved in Anglo-American law, is not a device for keeping persons in jail
upon mere accusation until it is found convenient to give them a trial. On the
contrary, the spirit of the procedure is to enable them to stay out of jail until
a trial has found them guilty. Without this conditional privilege, even those
wrongly accused are punished by a period of imprisonment while awaiting trial,
and are handicapped in consulting counsel, searching for evidence and
witnesses, and preparing a defense.”
That purpose, to help with
release, didn’t cover everyone, but it didn’t have to. It covered release,
which is a pretty huge thing. In fact, right now I have people who are on my
side of bail reform co-opting what should be the bail industry’s purpose to
release virtually all defendants pretrial. The problem is that the industry has
never really been about the victim (in 1898 it was helping America figure out a
way to release bailable defendants who had no personal sureties), and it shouldn’t
try to be about victims now because it will just seem ridiculous. Bail, and the
means for release through the commercial industry, has always been about the
defendant. And bail, release, and defendant’s rights are all covered by our
constitutions. That should be enough.
In sum, the bail industry
once had a pretty noble purpose. But now, in their quest to remain profitable,
the bail insurance lobbyists are tossing that purpose aside for whatever they
think will keep them afloat. One day the presumption of innocence doesn’t
apply, the next day it does. One day it’s all about freedom, the next day it’s
not about freedom. One day it’s public safety, the next day it’s back to court
appearance.
In the end, if the industry itself
doesn’t even know its own purpose, there’s absolutely no way it will survive.
By the way, the lobbyist also
says that none of us bail reformers mention victims, which is absolutely
untrue. First, I’m a victim of crime, and my family members have been victims
of violent crime. Moreover, everybody in the justice system cares about
victims, and to say we don’t is simply stupid. I don’t expect a bail insurance
guy to know that, though, because he’s simply not at any of the criminal
justice meetings I attend. Nevertheless, even before a few of us even did a pilot project (just a fourteen week
pilot, so nothing permanent) in Colorado, we spoke to every victim’s
representative in the state, who all understood and agreed to a better system
than the money bail system (one that involved less random releases and that clearly
could address public safety for past and future victims). All along the way in
this movement, we have included victim reps and sometimes victims themselves at
every major event. Moreover, in addition to prosecutors and law enforcement
officers, who typically carry the weight on victim’s issues, the Pretrial
Justice Institute has at least two board members with national victim advocate
experience.
What do the bail insurance
lobbyists have? Just a tendency to make up literally anything – no matter how
false and ridiculous – to continue making all that money.
Yeah, I know this blog is kind of long. But what this bail insurance guy said is really pretty outrageous.
