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 Insurance Companies, Risk Assessment, and Leeches

Sometimes I read something I can hardly believe. Recently a bail insurance company -- you know, the kind of company that supports bail bondsmen so that if someone skips court, there is some pool of money lying around  to help pay -- said in a blog that it thinks pretrial risk assessment is a "shiny new toy" that is unnecessary to the field of pretrial release. That's because, the company explains, bondsmen are the kind of soothsayers that know, in their guts, whether or not someone is a good or bad risk for coming back to court. What makes this hard to believe is that this is an insurance company (i.e., a company that typically uses all kinds of actuarial instruments to determine risk for, say, health or life insurance) writing that an actuarial instrument is nothing more than a toy. That's a bit like a doctor saying, "Well, I like to use the modern medical procedures for treating most illnesses, but for cancer I prefer the leeches."

Everybody at bail is trying to determine defendant risk. That's because American law has evolved to practically demand that we embrace the risk of releasing defendants pretrial. So you would think that a statistical tool that would help us determine who the riskiest defendants are would be something everyone could get behind. Well, apparently not the bail insurance companies.

I think the reason those companies cringe when they hear about new ways of doing bail is because those new ways always shine a harsh light on the for-profit bail industry. When commercial sureties were introduced in America in about 1900, everyone was pretty excited thinking that they would actually help get bailable people out of jail. Unfortunately, they only made things worse because they charged fees and starting picking who they would help to release not based so much on risk but on their ability to pay those fees. Over the years, bondsmen and insurance companies have made it so it's virtually impossible for them to lose money. They only take people who can pay the fee and collateralize the potential amount owed. If the defendant skips, there are laws on the books in most states that make it practically impossible to force anyone but the defendant or his or her family to pay. As one bail bondsmen once said here in Colorado, "My job is to protect the insurance company from the loss . . . it's not a greed thing, we just don't want to pay." So, really, in the bail bond business, actual risk has little to do with anything. Who cares about risk when you don't have to pay?

Risk instruments also make the bail insurance companies cringe because those instruments assess risk that a defendant (1) may not show up for court and (2) may commit some new offense while on release, and that reminds people that the for-profit bail industry has absolutely nothing to do with public safety. If a bondsmen helps someone by agreeing to pay the financial condition of a bail bond, that money will never be lost if the defendant commits a new crime. Bondsmen potentially only lose the money if the defendant doesn't show up for court; in fact, a new crimes simply present new business opportunities for bondsmen. The fact that commercial bail bondsmen and the insurance companies that support them do nothing for public safety makes them like a horse and buggy riding along next to the new Ford plant. Its days are numbered. We have two constitutionally valid purposes for limiting pretrial freedom -- public safety and court appearance -- and the fact that the for-profit bail industry consistently only addresses one of these is, alone, cause for us to radically re-think our use of it.

As usual, the blog refers to BJS data that it says shows commercial bail bonds are "the most effective way" to get defendants back to court (note how it only addresses court appearance). A few years ago BJS itself was alerted to the insurance companies using its data to say the same thing, and BJS responded by issuing an rare advisory essentially telling everyone, but especially those insurance companies and bondsmen, that they can't make those types of statements anymore. The data simply don't support them. I know the insurance companies knew about the data advisory because at the time it was issued they complained loudly about it. Now, apparently, they have just decided to ignore it. The fact is that the commercial surety system in America is so flawed and unfair, so fundamentally backward, that even if someone could convince me that bondsmen do help get people back to court better than say, police (they can't, by the way), I would still say that we need to re-evaluate the utility of the for-profit system because it has nothing to do with public safety and in the aggregate only causes unnecessary pretrial detention.

In the end, the author of the blog says that criminal justice and bail are complex. They are, but I have found that when people understand the complexity, they are quick to jettison the for-profit bail system as something that simply hasn't kept up.      

Bail Insurance Companies and the Arnold Foundaton Research

The Arnold Foundation has released some fascinating research using big data-sets to help further pretrial justice. If you want to read about the research, go to:

http://www.arnoldfoundation.org/sites/default/files/pdf/LJAF-Pretrial-CJ-Research-brief_FNL.pdf.

I’m going to talk about only one of the research papers because the commercial bail insurance industry has already misinterpreted it for their own gain.

The Arnold researchers, using some really sophisticated statistical analyses, demonstrated that lower risk (as determined by the current Kentucky pretrial risk instrument) defendants detained for more than 24 hours were more likely to fail to show up for court and to commit new crimes both short and long term. This is an important finding that leads us to try to persuade judges to do everything in their power to release a lower risk defendant once that defendant is deemed safe enough to be managed within the community. Since money tends to detain and to prevent release of bailable defendants, doing things like setting a surety bond will actually increase the risk to public safety and court appearance whenever that type of bond delays or prevents release. And, of course, those types of bonds both delay and prevent release.  

By the way, I recently reported on a study by Dr. Michael Jones showing that there was no difference in public safety or court appearance rates when judges used unsecured (having to pay money only if the defendant fails to appear) versus secured (having to pay money up-front in order to get out of jail) bonds. Thus, these two studies together should guide judges naturally toward using unsecured bonds whenever those judges think that money is an appropriate condition of release. Personally, I don’t think money is ever appropriate, but for those judges having a hard time with that idea, using an unsecured bond at least gets the defendant out of jail quickly – thus avoiding the deleterious effects of short-term detention – and at no cost to public safety or court appearance rates.

I think the bail insurance company lobbyists recognize this important coupling because now they are trying to pick apart the Arnold study. Basically, the bail insurance companies make a lot of money when judges set surety bonds and are content to wait around while defendants take a week or more to come up with the money they need to get out of jail. That is, essentially, one of the biggest problems with a secured bond system administered through commercial sureties: it leads to people taking longer to get out of jail, and some people never get out at all for lack of money. Now it looks like keeping people in jail for even those short periods of time is messing up them and society as a whole. Really, we didn’t need a sophisticated study to tell us that.

The purpose behind limiting someone’s pretrial freedom is court appearance and public safety – not just court appearance as the bail insurance companies say. Moreover, bail never means any kind of “guarantee,” which is what the bail insurance companies appear to be saying as well. The United States Supreme Court has been clear in saying that all we can expect from pretrial release is “reasonable assurance” of any particular outcome, such as public safety or court appearance. There are no guarantees in bail – risk is inherent and, in fact, necessary to our very democracy. Saying that a surety bond is a guarantee of court appearance not only misapprehends the foundations of bail, it is incredibly misleading. In fact, a surety bond doesn’t even give us reasonable assurance.

If I were in the bail insurance business, I would stop trying to pick apart the Arnold study and start trying to figure out how to change my business practices so that defendants deemed safe enough for release would at least get released quickly, even if that meant I might not make as much money. Any delay in releasing a lower-risk bailable defendant is wasteful and ineffective. Now, thanks to the Arnold researchers, we see that it’s also dangerous.