Bail Agents, This Should Worry You

Bail agents, if the insurance companies were making any progress, you'd see independent opinion pieces popping up all over America with varying views about bail reform. You wouldn't be able to even keep track of them, and they'd be coming from a variety of big, important groups or people who have legitimate opinions about bail. That's what I see every day -- and I can honestly say that I can't keep track of any of it.

But what do you get? Opinion pieces written and likely paid for by ABC and the insurance-infested PBUS.

The latest example is, "Bail Keeps Criminals Away from the Rest of Us," an opinion piece posted by ABC and PBUS the other day. How do I know this piece is just a shill piece for the insurance companies? Because the dude who wrote it doesn't know anything about bail and keeps talking about all the stuff the insurance companies are peddling.

Let's start with the title. You do know that when bail keeps criminals away from the rest of us, that's actually "no bail," right? Bail that is designed to keep criminals from the rest of us is unconstitutional. This legal lesson is lost on the insurance companies, though, and they keep trying to force people to think that somehow they have something to do with public safety. But the author doesn't know that -- he writes what they tell him.

Next the author tries a history lesson, saying that "prior to the advent of bail, suspects were held until their trial date." Wrong. With a capital W. Bail has always been release. Even the predecessors to bail -- before the Normans, before jails even, were based on release. I honestly don't know what this guy is talking about, but you should know that the insurance companies' attempt to write a competing history of bail has failed already. Really, man, I'd like to see a cite for this one.

Then there's the language. Only bail insurance companies say "get out of jail free," "social justice warriors," and "algorithm regime."

Then there's what the author cites to. Jefferson County Colorado is a favorite of bail insurance companies because that's where I came from. You only have to know two things about Jeffco. They got rid of money bail for 14 weeks, and everything went well. After that pilot, they went back to using money bail and everything sucked. By the way, it was the insurance companies coming out to Jeffco and attacking me personally that ultimately led me to do what I do now full time. Do you think that coming after me back then was a good strategy? Think about that every time they make personal attacks, and be sure to give a big thanks to ABC for getting me started and to PBUS for keeping me going.

He also cites to a study by Helland and Tabarrok, which has been discredited by the very agency that provided the data for that study to begin with. But the point is, nobody cites to those guys on their own -- they do it only when it's part of the insurance company script.

Then there's New Jersey.

And finally, there's the fact that the entire piece does exactly what ABC and PBUS do best -- fight and argue for the status quo without any ideas to help jurisdictions that are actually trying to change. "It isn't perfect," the author says, "but it beats the alternative." That argument is worthless and failing as we speak.

All of this should worry you, bail agents, because ABC and PBUS have to provide all of the crap for people to say. It may look like someone has put a bit of independent thought into this opinion piece, but that's just not true. ABC and PBUS don't have any people talking about keeping the money bail system in place on their own, and so ABC and PBUS have to actually manufacture people's opinions.

Like I said, I can't even keep track of all the people across America writing about changing "bail" and "no bail." I don't have to tell anyone what to say. They just say it. What do the bail insurance companies do? They use shills.

And because using a shill is a weasel move, I use the weasel pic.

The American Bail Coalition -- San Francisco and Beyond!

The American Bail Coalition just sent out a memo trying to put bail agents at ease in the face of a growing number of federal lawsuits undoing money bail in America. In it, ABC raises a few points that are worth a second look if you’re a bail agent.

First, ABC says that the San Francisco suit is only about bail schedules, and not about abolishing what a recent article called “cash bail,” necessarily extending to surety bonds. Later, though, ABC says it helped the California Bail Agents with its motion to intervene in San Francisco, and that particular motion states: “If Plaintiffs’ requested preliminary injunction is granted, Proposed Intervenors’ entire industry would be destroyed” and “Not only would that destroy Proposed Intervenors’ entire industry, but it could undo thousands of existing bail surety contracts whose purpose would be declared unconstitutional.” ABC knows what’s going on. They just don’t want you bail agents to figure it all out.

Second, ABC says that it’s worked tirelessly with virtually every criminal justice stakeholder group to oppose the federal suits. Really? Why, then, has virtually every criminal justice stakeholder’s national organization published policy statements advocating adopting a risk based versus a money based system? Believe me, ABC is alone in this thing. It’s their lobbyist working with its member insurance companies’ other lobbyists trying to figure out a way to keep the money rolling in.

Third, ABC says that it’s prepared all kinds of legal documents that it wanted to get into some earlier federal cases, but it couldn’t because those suits were settled too fast. Yeah, right. I’ve been watching ABC for a while now, and it has mostly regurgitated the same tired arguments for the current system (ABC calls them showing the "fatal flaws" in the claims of reformers) and has consistently lost by doing so. It lost here in Colorado, it lost in New Jersey, it lost in New Mexico, it lost in Wisconsin, it lost in Indiana, it lost in Utah, and it’s losing in virtually every state it jumps into. If there are "fatal flaws," as ABC says, don't you think it would win every so often? So ABC will continue to lose – and to take bail agents down with it – as long as it continues to argue for the status quo. “The American Bail System works,” ABC says, but that’s absolutely false. The American bail system hasn’t worked since 1900, which is why we’ve witnessed generation after generation of bail reform since then. Think about it, bail agents, if it were working, would some 25-30 states be calling me asking how to change their entire bail statutes and constitutional bail provisions?  Saying that bail is working when everyone else says it isn’t working makes people think that the insurance companies don’t have a clue.

Finally, ABC says it’s hiring (meaning that it’s using the money that you bail agents give them to hire) “national federal litigation counsel” to try to get into these suits so they can further argue the status quo in court.  Now I used to work for the federal courts, including for the federal court of appeals, and intervening into a suit isn’t the easiest thing to do. Think of it this way. At their core, the suits are challenging judicial bail setting practices (some admittedly delegated). Does that mean we let everyone in the suit who has some remote interest in bail setting? Do we let in the GPS monitor manufacturers? How about drug testers? How about the people who make lunches for the inmates in jail? For goodness sake, if we lower the jail population, that lunch-making industry might fail.  

The bottom line is that the bail industry is tangential to the actual decision to release or detain a defendant. To the extent that it isn’t – meaning to the extent that the bail industry has actually usurped the judicial decision itself – then it shouldn’t be allowed to exist in that form anyway. And what if ABC does get in? Well, even then it’ll probably just keep saying the same old stuff – “money bail works,” “money bail’s fair,” “everyone else is wrong.” They’ll keep spending money to say these things right up until they’re making exactly the same amount of money that they’re paying their last lobbyist. And even then, they’ll probably just hire a cheaper lobbyist. 

ABC wrote a funny line at the end of its document. It said that those of us seeking change are “bastardizing” our criminal justice system and “abandoning the American bail system.” Not true. The changes that we seek – and by “we” I mean people like me and all of those stakeholders I mentioned earlier – are based on fundamental constitutional and historical American legal notions, such as due process, equal protection, the right to bail, and the presumption of innocence. If it takes a federal court to tell the states just how far from these notions they have strayed, then so be it. Moreover, we aren’t abandoning the American bail system. No, we’re just returning to the American bail system that existed before the commercial bail industry got involved, when unsecured bonds assured that virtually every bailable defendant would not be jailed for failure to pay money.      

ABC is spending a lot of time and money to keep things the way they are. The problem is that nobody else in America wants to keep things the way they are. If I were a bail agent, I’d try to figure out how much money I give the insurance companies, and then I would spend that money, instead, on redefining my role in pretrial release and detention in America. There may be a place for private pretrial in America, but the window for finding that place is rapidly closing. By refusing to accurately see the future, ABC is practically slamming that window shut.  

Bail Agents, This One’s For You

Well, I’ll get right to it. In my last post – which I thought might be my last post – I said I might come back if somebody made me mad. And guess what? Sure enough, somebody did.

No doubt you can guess who. Yes, that’s right, it was a bail insurance company lobbyist, who insisted on going down to New Mexico and trying to trash a project I was involved with years ago here in Colorado. It didn’t work, of course, because the people in New Mexico called me and a couple of others here in Colorado and we told them the truth, something that the insurance lobbyist probably had a hard time conveying in his presentation. 

Bottom line is that I’m coming back, and I’m going to go at this thing full time. Bail agents, you should realize by now that the insurance companies are doing you no favors anywhere in America. By rehashing the same tired and discredited arguments and by misrepresenting the law and the research to keep the status quo, the insurance companies are – perhaps unintentionally – sealing your fate. 

Here in Colorado, everyone can point to the single event that triggered all of us getting together to change bail. It was when an insurance company lobbyist came in from out of town and did what he was paid to do – keep the money flowing to the insurance companies. The problem is that by doing so, he turned people against everyone involved in commercial bail, including you bail agents. The insurance companies are doing the exact same thing today in other American states, and unless those companies radically change their tactics, you can bet that bail agents simply will not exist in any form in America in the next 10 years.

I used to think that the bail insurance companies might ultimately see the real issues and change their strategy to actually help you agents, but now I see that they are too consumed with the free money (that you all give to them) to do you any good. The future of bail and no bail in America simply does not include the kinds of high dollar amounts that seemingly require insurance company backing. And because they don’t belong in any pretrial future that I can think of, insurance companies will continue to argue to keep things the same. By doing so, however, they’ll continue to lose. And as they lose, they’ll most definitely take you down with them.

As a bail agent, I know that you rightfully take some pride (as we all do in pretrial justice) in knowing that you are helping to uphold the rights embodied in both the states’ and the federal constitution. To stay in such a noble pursuit – to be able to feel the same sense of constitutional pride for the next 100 years – you simply must see the insurance companies for what they are and what they are not. Simply put, they are the method of your demise. They are not your friends. 

The Untold Cost of Eliminating Money Bail – A Lot More Money?

The latest from the bail insurance companies says that people like me don’t like to talk about the “cost” of reform. Not true, my friends – in fact, let’s talk about it now.

I’ll start big picture. Basically, the insurance companies say that commercial bail costs less than anything else. The problem is that when they say this, they leave a lot out, which is why we’re having a bail reform movement to begin with. First of all, they leave out the fact that private bail companies only care about court appearance, not public safety, and yet judges are required to care about both of those things when they set bail. In virtually every state, you can only forfeit a commercial surety bond for not showing up for court. If a defendant commits a new crime while on release, the bail agent and insurance company don’t have to pay anything and they get to dump the defendant as a client. In fact, if the judge plays along and sets another commercial money bail bond, then the bail agent and insurance company can just do the whole thing over again. I often say that the best client that the bail industry has is one who always comes to court but keeps committing new crimes.

Commercial surety bonds have absolutely nothing to do with public safety. Just ask the people of Washington State, who had to change their constitution because a guy named Maurice Clemmons got out on a commercial surety bond, tried to rape two small girls, and then shot and killed four police officers. So what’s the cost of not even caring about public safety? Really, this is the biggest thing the bail industry has to deal with, and they just don’t have an answer for it.   

Because we keep pointing this out, you’ll hear the insurance lobbyists floating some incredibly strained logic trying to convince people that they care about public safety like, “Well, we make sure they come to court, and so long as they’re coming to court, they aren’t committing new crimes.” Oh, yeah, now I remember. That’s exactly what the insurance company lobbyist said in the blog I just read. He said, “When people show up for court, they are not out in the community committing additional crimes.” Man, that’s just messed up. Again, commercial surety bonds have nothing to do with public safety. And if you argue for one or set one, then you look like you don’t care about public safety either. That’s it.

The second really big thing they leave out is that bail agents and insurance companies don’t want to have to help someone bond out of jail. Basically, they want to pick and choose who gets out of jail, and they want to pick and choose mostly based on how much money people have. In the end, that one thing – the ability to turn people away for lack of money (or really for no reason at all) – has led to the mass incarceration of pretrial defendants ever since we created the commercial surety industry in 1900. And the costs associated with that are astronomical. You’ll never hear an insurance company lobbyist compare the cost of being released through a public or nonprofit pretrial services agency versus the cost of staying in jail because some bail agent decided not to help. The cost of jail can be as much as twenty times the cost of pretrial services agency supervision in the community.  

The third really big thing they leave out is that when there’s a public sector release system in place, the bail agents and insurance companies really, really like to have someone released on a commercial surety bond along with the public agency supervision. That way, they don’t have to do anything except collect money. This is commonly known as double-supervision, and it wastes more money in America than we can even estimate.    

The fourth and final really big thing they leave out is that commercial bail agents and insurance companies simply have no way of determining a defendant’s risk for failure to appear for court or public safety. They go by their gut, and often you’ll hear them say things like, “Well, since that guy can’t afford to pay me, he must be a risk to public safety so it’s a good thing that he’s in jail.” Part of the job of pretrial services agencies and programs is to assess defendant risk, lately through the use of validated pretrial risk assessment instruments that use sophisticated statistics to determine the likelihood of returning to court and not committing new crimes. When they use these instruments, they can help judges match supervision needs to risk, and that saves an inordinate amount of money. I once heard a bail insurance lobbyist say that he didn’t believe in these risk instruments – that he actually believed it was a better system to rely on a bail agent’s gut instinct. Can you imagine? An insurance guy who doesn’t believe in actuarial risk assessments, which are the very things that those same insurance guys use to determine your health, life, and car insurance.

The rest of the insurance blog tried to piece together odds and ends designed to show that it’ll cost a bunch of money to dump the old system. Now, remember, the system they don’t want us to dump is the system that doesn’t care about public safety, that doesn’t care if defendants get out of jail, that doesn’t care if it wastes resources, and that has no way of determining or responding to actual defendant risk – again, they just left all that out. So here are a few things that the blog said.

First, it said that New Jersey was presented estimates about how much a pretrial services agency approach would cost the state. Well, guess who presented those estimates? Right. It was the bail insurance companies, which used an incredibly inflated estimate of the D.C. pretrial budget and extrapolated that budget to the entire state of New Jersey. Yes, estimates through testimony were presented, but nobody in New Jersey bought it. Even with that testimony, that state passed changes to its constitution and statute designed, among other things, to reduce, if not, eliminate reliance on the commercial bail system.

Second, it used the same D.C. pretrial budget to say that it would cost some astronomical amount in some other city. The insurance companies have been using this argument for years now, and it simply isn’t working. Everybody knows that the D.C. pretrial budget is bigger than everywhere else. That’s why, after the insurance companies point out the D.C. budget, people like me show decision makers about twenty other pretrial services agency budgets, from all over the country, that demonstrate how you can run an effective pretrial services agency or program for nominal costs. A lot of places are even using probation officers to do the supervision, and we already have probation in virtually every jurisdiction in America. 

Third, it said that states and counties benefit from the taxes and forfeitures inherent in a private bail system. Well, if I ever actually saw an insurance company pay on a forfeiture, it would be a first. In a recent Mother Jones article http://www.motherjones.com/politics/2014/06/bail-bond-prison-industry, one bail insurance lobbyist said his company had been in business for 107 years and hadn’t paid out a single claim. And just check your statutes. If they’re like everyone else’s, you’ll see how the bail industry has helped enact multiple hurdles, extensions, and exceptions, all to keep them from having to pay forfeitures. By the way, insurance guys, if you wonder into a law library, you’ll also see that setting bail to make money is unconstitutional, so saying that you like a bail system that makes money for the government neglects the fact that such a system would actually be unlawful for that purpose. I wouldn’t focus on this argument too hard, because the tide is turning in America away from profiting off of flaws in the justice system.    

The blogger ends by saying that the comparison between release on a commercial bail bond and release to a public or nonprofit pretrial services agency or program isn’t even close, and he’s absolutely right. Commercial bail (as it’s done today) is so far off that it needs to go. There’s probably a place for what I call “private pretrial,” but that’s not going to look anything like what we do today, which is to rely on huge, arbitrary numbers, and which seems only to exist to line the insurance companies’ pockets.

So, you see, people like me don’t mind talking about cost at all. I just don’t do it all that often because most of the improvements I’m talking about doing are for reasons that include fairness, rationality, common sense, and following the law. Ask some bail insurance company lobbyists to tell you the cost of not following the constitution, the cost of ignoring the research on risk assessment and mitigation, the cost of unnecessary pretrial detention, or the cost of allowing extremely high risk people out on a surety bond simply because they can pay. Those are the costs that matter, and those will be the costs that the bail industry won’t want to discuss.