The New Mexico Governor and Bail Reform

I like when Governors get involved with bail reform. I really do. But with the New Mexico Governor's entry into the world of bail reform calling for the repeal of the constitutional bail amendment through her Facebook account, I have four quick things to say.

First, she was for the New Mexico constitutional amendment in September before the election. Given that it passed with 87% of the vote, I'll bet she even voted for it.  Before the election, the bail insurance companies even called it a "historic" compromise. Then they realized that the New Mexico Supreme Court had the ability to radically diminish the use of money at bail. They had serious buyer's remorse when they learned they couldn't just lobby the legislature to keep themselves in business, and I guess they managed to spread that to the Governor.

Second, I don't like when bail reform gets political, because it doesn't need to. But by using the phrase "repeal and replacement" -- perhaps the most political phrase of the 21st Century -- along with faulting judges for "return[ing] criminals back to our neighborhoods" as well as repeating he woefully tired phrase "catch and release," she has obviously bought into the bail industry's political rhetoric of trying to show that any attempt at bail reform is an Obama-era program that somehow hurts public safety (the last desperate cry of defenders of the status quo). Just remember, the bail insurance companies don't care about public safety -- up until the amendment, they were quite happy helping to release any and all dangerous defendants in New Mexico so long as they had some money. Bottom line: Bail reform isn't political if you actually know what bail reform is.

Third, the substance of this issue shows just how little the Governor actually understands. The case she cites, William Wilson, could have been detained under the constitutional amendment. So there's nothing wrong with the amendment in that case.  In the old days, some judge would have given William a money bond, and William would have been out on the streets anyway because a Supreme Court opinion said New Mexico judges couldn't use money to detain. Money won't keep anyone safe, so the constitutional amendment allows judges to detain, without money, dangerous defendants, just like the Governor wanted. And there's nothing you could add to the constitution to do any more than just allow judges the opportunity to detain someone. Laws that have that made persons automatically detainable for various reasons have always been struck as unconstitutional. Even rebuttable presumptions have to be rebuttable.

So if the constitutional amendment did what it was supposed to do -- i.e., allow a judge to detain William -- why wasn't he detained? Well, it could be because of the court rules (which is ABC's beef), but if that's the case, then I suppose that's just tough. In New Mexico, the Supreme Court's rules govern bail, and the legislature can't change them. I suppose that's why she says she wants to repeal and replace the constitutional amendment; the bail insurance companies finally figured out that the amendment wasn't the best thing for their industry after all, and going back to change the constitution is really the only way they can undo it.

But the fact that William wasn't detained could also be due to the fact that no matter what we do, we simply cannot predict individual defendant behavior. Indeed, the more serious and violent crime gets, the less able we are to predict it. We couldn't predict it in the money bail system either, but at least this way New Mexico gets at least a shot at detention for certain "dangerous" defendants.

I imagine if you look hard at the case she cites, you'll see that the judge did the absolute best he or she could do to balance individual freedom with public safety and court appearance. William could've been detained, but something in the case -- including the inability to predict individual risk under any bail system -- obviously led to his release.

So, Governor, respectfully: (1) the amendment isn't really your problem based on what you're saying (it's someone else' problem, but I'll let you figure that out on your own); (2) don't politicize bail reform -- leave that to the insurance companies who don't care one bit about New Mexico residents; and (3) look into the issues before you take a stand on something. If you'd have looked into the constitutional amendment before you said you were for it, you would've not only seen this coming, you would've actually understood why it was inevitable.

Oh, and (4): On Facebook? Really?

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.