Bail Reform and Common Sense

When I was a boy growing up in the summer of 1968, my dad, who was asked to deliver a speech at the Republican National Convention that year told me, “You should always start off with a joke, and then hit them with your most important topic.” Last night, during the 2016 State of the Union Address, President Obama did just that. After the obligatory joke, the first substantive topic out of his mouth for the future was “criminal justice reform.”

Some journalists have written today that by merely mentioning it but not going into detail, the President was giving the topic the short shrift. But that’s not true. Criminal justice reform didn’t need an explanation. It didn’t need to be sold to Congress, and it certainly didn’t need to be justified to the American people. It’s a topic that is infinitely important in defining who we are as Americans and how we are seen by the rest of the world. It’s a topic that virtually everyone is behind, and that will most definitely happen. And it’s a topic that necessarily includes bail reform.

About a month ago, the White House and the Department of Justice co-hosted a meeting on fines, fees, and bail, which was designed to “build on the Administration’s commitment to criminal justice reform” by discussing and sharing ideas about how to implement “common sense reforms so that financial obligations imposed by the government do not lead to unnecessary involvement in the criminal justice system or exacerbate poverty.” It was a pointed meeting about money in the criminal justice system, and about how that money turns criminal justice on its head.   

Those of us bail types who were there provided an ample list of common sense things the federal government could do to help bring bail reform to both the federal and state systems. But I don’t think they needed a list. From the first speech by Attorney General Loretta Lynch, to one of the last by White House Counsel Neil Eggleston, it was clear that the White House and the Department of Justice had a firm grasp on how bail had been perverted in America since the mid-1800s into a detention-causing process through the use of secured money conditions. It was clear to them, as it is to virtually anyone else in America who does not profit from that system, that the current administration of bail is wrong and must be fixed.

In 1776, Thomas Paine published “Common Sense,” a pamphlet that inspired the American Colonies to declare independence from the tyranny of British rule. In the very first sentence of its introduction, Paine wrote: “A long habit of not thinking a thing wrong gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom. But the tumult soon subsides. Time makes more converts than reason.”  To Paine, American independence not only made sense, it was also inevitable.

Bail reform is no different. For too long we have allowed our system of pretrial release and detention to be crafted to suit corporate insurance interests with no regard to whether using money even makes sense. Like Paine’s observation of British rule, we have simply spent too long not thinking money bail wrong – thereby giving it the unfortunate home court advantage of custom and habit. Moreover, by merely announcing a desire to base release and detention decisions on a common sense system of assessing a defendant’s actual pretrial risk versus his or her charge (which may or may not indicate risk), states are inviting the inevitable reform involved in crafting entirely new statutes and constitutional bail provisions that are currently based on charge.

My dad sometimes told me that you could end a speech with a joke, too, but I won’t because this is no joke. The secured money bail system not only causes countless harms to society, it defies virtually every notion of American freedom and equality that we defend in our founding documents. Its very existence makes us worse, and common sense dictates that we fix it now.  

Beware of Bail Lobbyists "Teaching" Our Students

I just read an article titled, "Bail bondsmen are a thing of the past in Massachusetts." According to the article, the phase-out started with bondsmen corruption, which led to the creation of alternatives to bondsmen, and finally to judges simply choosing not to use them. But it quickly reminded me of a recent You Tube video of a bail insurance lobbyist trying to convince college students why bondsmen are "indispensable" to the criminal justice system. I know lobbyists are paid to spin, but given the disconnect between what this lobbyist said and reality as epitomized in Massachusetts, it's no wonder that people are recognizing that the world might just be a better place without the commercial surety industry.

The lobbyist started by referencing a chapter in an American Bar Association booklet about sureties in which he and another author make the case for for-profit bail bondsmen. In fact, the part in that chapter talking about their worth is relatively new, and was created only recently to muddle the water about what the ABA really thinks about commercial sureties. In the ABA's Criminal Justice Standards on Pretrial Release, the document that was created by criminal justice system decision makers (i.e., judges, prosecutors, defense attorneys, and pretrial experts) and not bail insurance lobbyists, Standard 10-1.4 says that "compensated sureties should be abolished." There are a lot of reasons for this, and any good college student should probably look them up before taking the word of the commercial bondsmen's hired gun.

By tracing bail back to Egypt, the lobbyist implies that his industry has been around for eons. In fact, the commercial surety industry has only been a part of the American system of bail since about 1900. Before that, England and America relied primarily on unsecured bonds administered through a personal surety system, in which profit and indemnification were not allowed. Shortly after the introduction of commercial sureties, we realized that they would pick and choose who to release. That, and their tendency to engage in corrupt activities, led people to actively criticize commercial bail bondsmen as early as the 1920s and eliminating them as early as the 1960s.

Once again, the lobbyist uses U.S. Department of Justice Bureau of Justice Statistics (BJS) data to say that commercial sureties are a better form of release than all other forms. You just can't do that. The BJS itself said that you can't do that, and issued a "data advisory" warning people not to make evaluative statements based on their data because doing so would be incredibly misleading. I know that the bail lobbyists are aware of the advisory because when it came out they complained loudly. Since then, they have simply ignored the warning. You just can't trust the bail insurance lobbyists when it comes to research. There is good research out there, but you won't hear about it from the industry. Someday, if I have to, I'll detail the disturbingly cozy relationship these bail lobbyists also have with some so-called "neutral" researchers. It's fascinating stuff.

Once again, the lobbyist says that a commercial surety release is superior to all others because defendants think that, "they [bail bondsmen] are coming after me." That's not true either. If you don't believe me, ask any cop or deputy sheriff. We did here in Colorado, and for three months we tracked arrests made by 15 or so municipal agencies as well as walk-ins to the court. A whopping one-half of one percent were brought in by bail bondsmen or a bounty hunter. In another study, researchers compared defendants who failed to appear for court on secured bonds with those released on unsecured bonds. After one year, the numbers were equal, indicating that nobody was going after defendants on surety bonds more than anybody else. Yes, there are bounty hunters, and yes, some do make a living at it. But their prevalence has been grossly overstated.

The lobbyist says that people behind the current generation of bail reform are only concerned with helping defendants, which is also not altogether true. The current pretrial justice movement is focused on both "bail," or release, and "no bail," or detention. It is concerned with setting up legal and evidence-based practices so as to maximize the release of bailable defendants (while protecting the public and providing assurance of court appearance) and the detention of nonbailable defendants. Overall, it is concerned with public safety, court appearance, and appropriate placement of pretrial defendants. It's just that money gets in the way of all of this, and so we are moving away from it. If you move away from using money, you are bound to have bail insurance lobbyists come up with their own distorted reasons to explain what we are doing.

In a related statement, the lobbyist says that there's no such thing as a low risk defendant who can't get out of jail for lack of money to pay a bail bondsmen. That statement even defies logic. The Department of Justice estimates that nearly 90% of defendants held for the duration of their pretrial phase cannot post the monetary condition s of their bonds. Here in Colorado, we once did a study where we weeded out all the defendants who might have holds, etc., and other things getting in the way of release, and then we walked cell to cell to ask them why they weren't out. The reason was money. This was true in about 80% of the cases, and a bunch of those bonds were for less than $100. Now, this particular lobbyist qualifies things by saying that if a person can't get out, he must be a high risk and thus shouldn't get out. The big problem with this statement, of course, is that bondsmen don't base their decisions on risk. They base them on the defendant's ability to pay the fee and collateralize the bond.  They call a defendant who can't pay "high risk." I call him a defendant who can't pay.

The lobbyist then says that he has tried to "extend an olive branch" to work together with the various people behind the current movement of pretrial reform. Really? Compare that to the statement I read in the agenda to a recent national bail bondsmen conference, which said, "Next month's conference will give you MORE help in fighting pretrial in your state." In fact, back about three years ago, this very bail insurance lobbyist showed up at a County Commissioner Meeting in my county to discuss de-funding our pretrial services unit. I didn't detect any spirit of cooperation on that day.

Finally, the lobbyist cites to a study by the Texas Public Policy Foundation. All I can say is, look this group up through Source Watch to see what they are really up to. They are connected to big corporations, and ALEC, which is closely tied to the bail insurance industry. You know, when I was in college I was extremely suspicious of people older than me -- for good reason, it turns out -- but I held out hope that when our generation got older we wouldn't intentionally mislead anyone who came after us. Unfortunately, that didn't happen. Don't trust anyone, even your professors. Question everything. Look everything up.

The bail insurance lobbyist was the first speaker in what is supposed to be a "criminology lecture series." I would hope that in the future they will get some actual criminal justice types to speak to students. Having a bail lobbyist speak on criminal justice is not much better than a lecture from the guy who prepares and sells sandwiches to the jail. Students being students, I am certain that they were smart enough to see the talk for what it was -- a sales job. At the very least, the students likely now understand a bit how an entire state like Massachusetts can easily decide that this industry is far from indispensable.


     

Bail, Pretrial Justice, and Federal Detention

The U.S. Department of Justice just issued its “Pretrial Detention and Misconduct in Federal District Courts, 1995-2010,” and it points to an alarming increase of federal pretrial detention – from 59% of defendants in 1995 to 76% of federal defendants in 2010. This number is a bit misleading, simply because defendants can be (1) detained for some part of the pretrial phase, (2) detained for the duration of the pretrial phase, or (3) never detained. As to the extremes, this report indicates that defendants never detained declined from 41% to 24%, while the number detained for the duration of the case increased from 42% to 64%. The trend seems clear; fewer people released and more people detained.

The report also suggests that an explosive immigration caseload has been a primary contributor to the increase in detention – a huge increase in immigration defendants with cases in federal courts (664%) contributing 60% of the overall increase in detention, despite the fact that detention rates for immigration cases did not rise nearly as much.    

Of course, immigration cases pose some of the biggest dilemmas for persons interested in bail and pretrial justice. These defendants are only accused of crimes, and they are allowed the benefits of the constitutional rights that every American enjoys; however, I have never seen an immigration case that did not somewhat inherently raise the issue of the risk of failure to appear for court. Perhaps this accounts for the fact that nearly 65% of federal defendants detained pretrial in 2010 had no prior arrest history. In a typical non-immigration case, no prior arrest history often means some form of pretrial release.    

Despite this possibly inherent flight-risk conundrum, I have seen numerous cases with immigration defendants who would seemingly pose little or no risk to public safety or failure to appear for court when measured by any objective pretrial risk instrument. It is interesting to me that ICE itself allows defendants to bond out of ICE custody for immigration proceedings, apparently for all the reasons the courts have articulated for any other non-immigration case.

In the past few years, federal officials have recognized the rising federal detention rate and have begun working on evidence-based methods to increase releases without sacrificing public safety or court appearances. This may account for the fact that federal pretrial detention actually peaked in 2008 and is now slowly declining. And, by the way, the court appearance rate for those defendants actually released has risen from 97% to 99% in the last fifteen years, and the public safety rate (no new arrests for felonies or misdemeanors while on bond) has stayed right around 98%, too. Misconduct based on technical violations has increased, but that's a topic for another day. 

Remember the words of conservative Justice William Rehnquist, writing for the Court in United States v. Salerno: “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”  You can decide for yourself if a 76% detention rate is what the Chief Justice had in mind.

The full report is here: http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=4595.