The Bail Insurance Companies' Personal Attacks

Okay, I'd expect this from PBUS, but not from ABC. But once again, the bail insurance companies show how low they can go by posting personal attacks against various people they believe are behind this generation of bail reform.

They're trying to subtly hide them by putting all the personal attacks on a separate site and FB page, but unfortunately the address for that is the same address listed for ABC on it's main website. Make no mistake, if it's against bail reform and it's trashing someone personally who is for bail reform, it's probably the bail insurance companies that are responsible for it, no matter how many layers they use to shield themselves.

Specifically, ABC has been naming people and questioning their motives, insulting them, and even portraying them in horrible (I suppose ABC thinks they're funny) pictures. Really, has anyone ever taken a picture of a sitting justice on a state supreme court and portrayed him as the devil? Yes, the bail insurance companies have.

Early in my bail career, I named one guy publicly and quickly came to regret it. I shouldn't have named him because he was just doing his job, which just happened to include a radically different ideology than my own. In fact, at the time I named him, I didn't really even think I was doing it as a slight -- it just turned out that way later on. I named another guy privately, but he forced me to do it. Then he decided to become an expert witness for the bail insurance companies, and, well, you're just asking for trouble when you do that. I think maybe he retired.

Since then, though, I've really tried (and, believe me, it's hard) to not name actual people in this bail reform thing. I'll talk about the companies and their lobbyists, but nobody should have to walk around thinking some goofball has put their picture on the web with horns and a tail. If you know me, you know that mostly I talk about issues (feel free to read some of the papers on my website). I write all the time, and none of it is about individual people, unless you count someone like Alexis de Tocqueville. My last paper was 200 pages and all I talked about was constitutional language. Can't you insurance companies at least try to do the same thing?

I want you bail insurance people to ask yourselves a question. When you were little, and your mother asked what you wanted to do when you grew up, did you say, "I'd like to trash the personal character of anyone who gets in my way of making gobs of money?"

The other day a bail insurance dude asked, "Why don't you just ask the bondsmen?" Well, one reason is that whenever we ask people in your industry about the issues, we get personal attacks. And, bail agents, just remember that personal attacks are the sign of desperation. Argumentum ad hominem seems okay, but it never works. The fact that this logical fallacy even has a name ought to tip you off.

There's still time for you all to create a decent strategy around this thing that doesn't involve personal attacks. The fact that you make them at all, tells my you don't know what that strategy even is.

This is the sleaziest thing you've ever done, and it plays into the slow degradation of our civil discourse. For that, you get the weasel pic -- twice.

ABC Says Bail Reform is Ebbing . . .

I say, better check out the front page of today's New York Times:

This thing is really only getting started.

And just wait until they do the deep dive into bail insurance companies!

Bail Insurance Companies Being Fooled By Their Own Lobbyists?

I don't normally write about the same thing twice in a row, but I think I will due to ABC's "breaking news" trumpeting a win in the Harris County case. So I have two things I want to direct right at ABC.

First, ABC, I know you all think you've pulled one over on the people on our side. Yeah, I know, you argued for the analysis under the 8th Amendment, and you ended up with a revised remedy (that may or may not resemble the full injunction) that kind of looks like that. Well, we ain't fooled. We know all about what the law is, and you won't win -- especially if you start focusing on the state right to bail (you know, the state-created liberty interest). Even your own attorneys knew the limits presented by the state right to bail, so you're definitely history on that one.

Second, ABC, for the benefit of the people who rely on you to tell them the truth (including those insurance dudes who seem bamboozled by the legal talk), did you forget to mention to them all the things you argued that ended up getting slammed by the Fifth Circuit? Sure, now you say, "All we ever wanted was a little procedural due process," but that's not what you argued. Nope. You argued there wasn't even an equal protection or due process claim, only an 8th Amendment claim, and that got slammed. You argued that Younger abstention applied, and that got slammed. You argued for rational basis scrutiny, and that got slammed, too. You argued that all the factual findings (including the trial judge's factual findings that all those wonderful studies you send out to bail agents everywhere were "not credible) were wrong, too, but the Fifth Circuit specifically upheld them. That's a big deal because it's those facts through which you lose a substantive due process or equal protection claim. You gotta know that, right?

Face it. You only said you were for procedural due process once you realized you'd lose on substantive due process and EP. Oh, and I'm teaching people how to beat you on an 8th Amendment claim, so get ready for those, too. Plus, what you're advocating for is a clear violation of virtually every state's right to bail provision, so watch out for that claim as well. Violating the state right to bail provision is what changed New Mexico. Now I realize that New Mexico is sort of a sore subject with you because you were lost through that whole thing. Well, take my word for it. Justice Daniels said judges had to follow the right to bail provision in the constitution, and that directive ended up decimating the commercial bail industry within just a couple of years. Bottom line -- when you stop allowing purposeful detention using money, you don't need money any more for anything else.

When it comes to substantive due process, the claim wasn't even brought. One of these days, though, someone will bring it, and you'll see the end of money bail in quick and decisive fashion. What was brought was procedural due process (which you now apparently like even though 8th Amendment analysis wouldn't have given any), and equal protection. And equal protection is where you really lost. The Fifth Circuit specifically upheld the EP claim, and that's going to ultimately lead to mass release without money. Remember, if you decide two people are treated differently because one has money and one doesn't, the remedy isn't to somehow allow money to keep one in and let another out.

Bottom line, ABC, you argued that Harris County's existing practices didn't violate the constitution, and the Fifth Circuit said they did. Remember your brief in the district court? You said Harris County's current system "far exceeds federal constitutional demands" and that "there is no escaping that the County's bail system is constitutional." You couldn't have been more wrong.

The people on my side know you'll try to settle. But my side shouldn't settle because we'll win everything the more we press on. You're only claiming a win now so that if you settle the people who pay your bills will be fooled into thinking they're not throwing their money away.

Get used to it. The Fifth Circuit opinion found clear violations of EP and procedural DP, and that should worry you because every county in America sets bail like Harris County. It's the beginning of the end of money bail in America, and you can't hide that from your insurance bosses.

You once bragged that having Paul Clement write up your brief was the next best thing to having the Supreme Court itself explaining things. Oops. Maybe not. Money can buy a lot, but it can't buy arguments that work in the federal courts.

The American Bail Coalition and the Truth

I often see posts by ABC talking about the "truth" and the need for everyone to tell it. Of course, that leaves people wondering, "How can we know when something is true or not?"

Well, here's one way: to learn the truth about what an article says, just ask the author!

ABC recently sent a memo to a bunch of people describing an article in a certain way to help the bail bond industry. Later, the actual author of that article sent a letter to those same people refuting the memo and saying, essentially, that ABC is full of it. So what was truth? The memo's take on the article, or the author's own take on the article? I'm going to go out on a limb here and say ABC didn't tell the truth about an article, and the author did.

And it doesn't really matter what I think. What do you suppose the group of people who initially got the memo think? Right. The think that ABC is so oily that it can't tell the truth even when it might be easy to do so. It cites an article and actually gets admonished by the author! How often does that happen?

I once heard a lobbyist for the bail industry say, "I can't vouch for the truth of the statements I make on behalf of others." And man, he was right. These guys can't even vouch for the truth of what they say on their own behalf.

The lobbyists for ABC are hired guns, told to say anything to keep bringing in the money -- even if it means a ton of people have to suffer for it. So we really can't expect the truth. There's too much money at stake.

And so here are the real culprits, the bail insurance companies telling those lobbyists to write about how much they care about the truth -- but not necessarily to tell it.

AIA Surety
American Surety Company
Bankers Surety
Black Diamond Insurance Company
Palmetto Surety Corporation
Sun Surety Insurance Company
Universal Fire and Casualty Insurance Company
Whitecap Surety

And . . . because saying an article says something when it really doesn't say what you say it says is a weasel move . . . you get the weasel pic!