Two Histories of Bail?

When I started researching bail, I noticed that there wasn't much on the history of bail. Accordingly, I started reading everything about the history, and I ended up writing quite a bit about it. It turns out that the history tells you some pretty important things, like why we've needed bail reform and how to avoid needing bail reform in the future.

Yesterday I noticed another published "history of bail" in Springer's Encyclopedia of Criminology and Criminal Justice. I couldn't wait to read it, especially since it was written by what I call a "bail insurance company sympathizer." I won't go into all the gory details of that right now, but maybe I will in the future if I have to.

In any event, I was anxious to see what the bail industry take on the history might be. After all, if you look at the history of bail, the commercial surety industry looks pretty bad. We only created that industry in 1900 (ironically because we thought it would reduce the numbers of people in jail who couldn't get out through the previous personal surety system), and by 1920 we had our first decent paper (written by the Dean of the Harvard Law School and a future Supreme Court Justice) saying that we need to figure out ways to stop using bondsmen. Ever since, they've been causing chaos with release and detention in America. Everyone from bail scholars and historians to police officers and judges have criticized them, and whenever anyone writes anything good about that business, it becomes pretty clear that the author was either paid off or didn't do his or her homework.

The bondsmen's history probably leaves out the fact that several states have completely eliminated them (the industry continues to try to get back into those states using some very slippery tactics), ignores the fact that the ABA national best-practice standards on pretrial release and detention calls for the abolition of the commercial surety industry, and uses the same four or five studies (most of which have been rendered useless through a Department of Justice data advisory, but that's whole other blog) to try to convince people to keep using them.

The bondsmen's history probably doesn't mention anything about the rampant abuse in the industry (documented starting in the 1920s), with commercial sureties trading bonds for sex, failing to pay for forfeited amounts, bilking clients, and knocking down the doors of random houses looking for what they call their "skips." It probably won't focus too much on their intense affiliation with ALEC, the same black bag policy group that fought against protecting children from cigarettes, that works hard to disenfranchise voters, and that continues to try to get courts across America to use commercial bail bondsmen no matter how many people it harms. And I doubt it'll go into much detail about just how much money the insurance companies make from this whole arrangement. So much money, in fact, that they have no problem spending millions on lobbyists to make sure that our system of bail continues to generate a profit.

So I was looking forward to reading it, you know?

The problem is that there was no way to buy just that article. Apparently you have to buy the whole freakin' encyclopedia just to read about the history of bail.

So . . .  I guess I'll leave a proper critique of the substance for another day. For now, just realize that there are two histories out there -- and they might not look exactly alike. I'll let you all decide which to believe. The histories that I helped to write are free, and you can find them in both our "History of Bail" document or in my recent "Fundamentals of Bail" document, both of which are on the National Institute of Corrections' and the Pretrial Justice Institute's websites. The bondsmen history is for sale at the low price of only $4,350.00 on the Springer Publishing website.

That kind of seems like a lot of money, but really it makes a lot of sense. Bondsmen, bail insurance lobbyists, and bail industry sympathizers don't think twice about making all of us pay big money simply to get out of jail, when freedom and liberty are our basic human rights. What's $4,000 for a couple of books?

Indiana and the Purpose of Bail

I just read a bail insurance company's take on bail in Indiana, which is worth a quick comment. In the insurance company's post, the writer opines that the purpose of bail is to guarantee that a defendant comes back to court. Then, interestingly, the same fellow laments that by using what we call a "ten-percent-option," which allows defendants to post ten percent of the financial condition of his or her bond to the court, rather than to a bondsman, the Indiana judges are taking money away from that state's "Common School Fund." Apparently, making the defendants pay money for release in ways other than the ten percent method directly subsidizes this fund.

This raises an important question -- just what is the purpose of bail? Is it court appearance or is it to finance the Common School Fund? The answer is neither one.

What we know as bail today was created in England in the Middle Ages, and when it was created, the purpose of bail was to avoid blood feuds between family clans. This remained the primary purpose of bail right up until the Normans changed everything by making the criminal process more of a public process, with crimes of royal concern (like today having criminal actions brought by the state), presentment juries, itinerant justices, and jails. Ever since, the purpose of bail has been exactly what logic would tell you it is when jails are involved: to release people. Bail is a process of release, and its purpose is to release people pretrial, just as "no bail" is a process of detention, and its purpose is to detain people pretrial. The insurance fellow in question is getting a condition of bail or release confused with bail itself. In America pretrial release is always conditional (with at least one condition being to come back to court or the bond might be revoked) and placing those conditions on a defendant's freedom may only be done to provide reasonable assurance of public safety or court appearance.

So the purpose of bail itself is to release people, and the purpose of conditioning that release on something is to provide reasonable assurance of one of the two constitutionally valid purposes of court appearance or public safety. When bail insurance people say that the purpose of bail is court appearance only, they are making that statement from their particular business angle. Bail bondsmen and the insurance companies simply do not have anything to do with public safety -- universally across America you can't even forfeit money on a bail bond for a new crime, and so for this and other reasons money simply does not protect the public. In fact, a defendant who continually commits crimes but never misses court is actually considered to be a pretty good customer to the commercial bail industry. Additionally, bail bondsmen will typically skip talking about release rates or any other notion of releasing people -- universally across America bondsmen and insurance companies reserve the right to deny helping any defendant to gain his or her release for any reason, or for no reason whatsoever.

If we know the purpose of bail (which is to release people) and the constitutionally valid purposes of conditions of release (which are either court appearance or public safety) then we know, too, that any other purpose for conditioning release is likely an invalid purpose. That's why nearly every state has articulated through case law various invalid purposes, and one of the most common is setting bail to "enrich the treasury," or something like that. It's pretty simple, really, if you can only condition release to protect the public or to assure court appearance, then conditioning release to pay for things is an invalid purpose. I doubt that the Indiana courts have said that a legitimate purpose for conditioning someone's pretrial freedom is to help pay for things, but if they have then it would be a complete aberration to what other courts have said across America. And even if it's not unlawful under Indiana law, one of these days someone will run a case up the federal side that will set everyone straight.

The way to look at the purpose of bail is to think of only three things -- release, court appearance, and public safety. Any other reason for setting a bail bond, whether expressly or not, is likely an invalid purpose. That's why you can't set bail to punish people (another clearly unconstitutional purpose) or to detain people, especially when avoiding the lawfully enacted detention process in any particular state. It's like setting bail to impress your friends. Invalid. And under nearly every big theory of law applicable to bail, whether that theory be due process, excessive bail, or equal protection, the government has to first articulate a proper purpose for its action.

If you don't believe me about all of this, go find an Indiana judge and get him or her to expressly state on the record that he or she is setting a particular amount of a financial condition in order to help pay for various state services. Run that decision up the appellate ladder -- both state and federal -- and see what happens.

I cover all of this in more depth in my Fundamentals of Bail paper, which you can find on my website. Oh, and I just noticed that I already talked about the same basic thing in a blog from 9-23-13. Obviously, the purpose of bail and setting bail for invalid purposes is one of those "bail basics" that I intend to revisit more than once.

The History of Bail in Ohio and Washington

This is the part of the Third Generation of Bail Reform in which we start seeing changes to policies, practices, and laws. So it's no surprise to see a couple of state supreme court cases dealing with bail. In both Ohio and Washington, the highest courts had to interpret those parts of their constitutions articulating a right to bail through "sufficient sureties." I won't go into detail about the cases, but I will mention two or three things of which I have written before.

First, the history of bail is not purely academic. Courts today still use bail's history to figure things out, like what "sufficient sureties" means in a state constitution. They may not always get it right -- for example, if the Ohio Court really knew bail's history, it would agree with the dissent's statement of bail's purpose -- to release people -- and it would more properly define "bail" as a process of release; if the Washington Court really knew bail's history, it would fully understand the historical concept of assessing sufficiency and would not be so quick to separate the concept of personal recognizance from bail.

Second, one of the major themes running through the history of bail is that whenever anything interferes with a bailable defendant's ability to be released, some correction becomes necessary. The notion that bailable defendants should actually be released is how we got Habeas Corpus, how we got the Excessive Bail Clause, and accounts for the entire first generation of American bail reform in the Twentieth Century. In Ohio, the trial court was basically requiring defendants to pay some percentage of the financial condition in cash, and wouldn't allow them to use bondsmen. In Washington, same thing. The problem was that these restrictions were causing the detention of bailable defendants, and therefore history demands a correction. It always has, and I assume that it always will. Thus, these cases were wholly predictable; indeed, across the country, I warn jurisdictions that if they continue to detain bailable defendants, there will inevitably be some correction or reform. In the 1800s, we started running out of personal sureties (people who were willing to take responsibility for defendants for no profit) and the result was the detention of bailable defendants. Our response, though poor in hindsight, was to allow people to profit from bail. We moved from a personal surety system to a commercial surety system primarily to make sure that bailable defendants got out of jail. What we didn't realize then was that the commercial surety system would cause nearly as much detention as not having sureties at all. It all follows the same pattern.

Third, we are seeing a trend. Judges across America are starting to realize that money poses some pretty serious problems with how we administer bail. On the one hand, money often keeps bailable defendants in jail, which, as I said before, requires historical correction. On the other hand, money doesn't help at all with unbailable defendants (or those whom we feel should be unbailable based on risk) unless it is set with a purpose to detain. If you're worried about public safety, you certainly wouldn't set a commercial surety bond -- bondsmen sometimes let defendants out with no money down and on payment plans, and even then the money isn't even forfeited for a new crime. No, risk to public safety is mitigated by non-financial conditions and, in some very rare cases, detention ("no bail"). Unless we dramatically reduce our reliance on money in the administration of bail, we will continue to see judges struggle with it and thus see issues surrounding money that can only be addressed in the appellate courts.

All of this points to the need to change not only our bail statutes, but also our relevant constitutional bail provisions to create proper "bail/no bail" dichotomies based on defendant risk. As I said the last time I wrote in this blog, a model constitutional provision would likely eliminate such terms as "sufficient sureties," because they are archaic, confusing, and get in the way of what we really need to do, which is to create the proper ratio of released to detained defendants. Sureties and their sufficiency were important concepts to English and American bail based on the personal surety system, but those concepts are simplistic and quite antiquated today.    

The bail insurance folks look at these two cases as wins for commercial bail, but they aren't. Indeed, in its opinion, the Ohio court goes out of its way to say that sureties can mean any person willing to take responsibility for a defendant (a historical concept) and not just someone who does it for profit. Moreover, to say, as the commercial folks do, that the opinions are supported by decades of research proving the effectiveness of for-profit bail bonding is simply false. If anything, the research shows commercial bail to be a failed experiment with effectuating release. We started using commercial sureties in about 1900, and by 1920 we had our first study saying that we'd made a mistake. Instead, I would look at these cases as wins for bailable defendants, who should be released but, for whatever reason, are not.

These two opinions address the situation when a judge keeps a bailable defendant in jail by making him or her pay cash and won't give him access to other means that might effectuate release. But the opinions don't talk about the other things that we need to fix. Like, for example, what happens when a bailable defendant can't pay the cash and the bondsmen won't help him out? Tough luck? I doubt it. We have a line of cases saying that bail is not excessive simply because someone can't pay it, but I predict that these cases will soon be overturned or otherwise negated. They contradict history, and their underlying rationale is worthless given our current understanding of risk and risk mitigation. Ultimately, it'll be the bondsmen and insurance company's core tendency to pick and choose defendants based on their wealth that will cause courts to reject the for-profit industry. Historically speaking, it's inevitable. In addition, these opinions have little to do with the implementation of "no bail," which is an equally important concept of pretrial justice, and which will undoubtedly be the subject of future appeals. In short, we're moving away from using money at bail, and the fact that a couple of state supreme courts are still talking about money won't change that fact.

The Ohio and Washington cases are interesting, but probably only the last gasps of courts trying to accommodate money in a system of bail that has simply outgrown it.

Sheriffs Say "No" to Bondsmen

Here's a link to PJI's coverage of the National Sheriffs' Association Conference, in which the Sheriffs voted not to endorse the commercial bail bondsmen in any way.

http://www.pretrial.org/national-sheriffs-conference-votes-no-on-commercial-bail-bonds-resolution/

The bondsmen -- I should say the bail insurance companies, who have been angling for this for a while -- wanted the Sheriffs to say in a resolution that commercial bail bondsmen were indispensably valuable to the criminal justice system. The Sheriffs said "no," and it's not really hard to see why.

Back in a 2012 resolution, the Sheriffs publicly recognized the value of high functioning pretrial services programs "to enhance public safety; promote a fair and effective justice system; provide assistance to sheriffs in the administering of a safe jail and reducing jail crowding; and help relieve the financial burden on taxpayers." The "whereas's" that set the tone for the resolution were especially telling. One said that a justice system relying on financial conditions of release at the pretrial stage is inconsistent with a fair and efficient justice system. Another talked about the purpose of limiting pretrial release -- to help assure court appearance and public safety. Yet another talked about how most pretrial inmates are incarcerated solely due to their inability to pay the secured financial condition of their bond. So, you see, you couldn't possibly expect the Sheriffs to endorse commercial bail bondsmen. Here's the breakdown.

The Sheriffs are concerned with public safety in addition to court appearance. The bondsmen, however, have no interest whatsoever in public safety, mostly because they don't lose any money if a defendant on one of their bonds commits a new crime. As long as the defendant doesn't miss court, a new crime is simply a new business opportunity for bondsmen. This represents a primary failure of the commercial bail bonding business -- there are two constitutionally valid reasons for limiting a defendant's pretrial freedom: (1) court appearance, and (2) public safety. Bondsmen and bail insurance companies only care about one, and it isn't public safety.

The Sheriffs care about a fair and efficient justice system. The bondsmen, however, like the idea of determining who gets left in jail based on how much money they have. This, of course, is the epitome of an unfair justice system. Moreover, when you base release on wealth, the people you leave in jail wind up costing a heck of a lot of money. It often costs communities $100 or more per day to house a defendant in jail, while release under the supervision of a pretrial services program or agency might cost only $5 per day or less. The inefficiencies associated with the administration of bail based primarily on secured bonds administered by commercial sureties are staggering.

The Sheriffs care about a safe jail that isn't crowded.The bondsmen, however, could care less about safe jails, and crowding jails is really the only thing that they're any good at. Ever since America changed to using primarily secured bonds administered by commercial sureties in about 1900, we have continued to have big problems with jail crowding. Basing release on wealth causes unnecessary pretrial detention. But basing release on wealth is the bondsman's raison d'etre.

The Sheriffs also care about relieving the taxpayers' burden. Here's the tricky one, because the bail insurance companies continually accuse pretrial services agencies of being "criminal welfare programs," etc., which cost the public more than bondsmen. The problem, of course, is that release to a bondsmen and release to a pretrial services program are two completely different things. Like I said, bondsmen only "supervise" -- if you can even call it that -- defendants to make sure they come to court. If a judge wants some sort of supervision to protect the public, the bondsmen can't (or won't) do it. It's just not in their business model. So whenever a judge orders some condition of release designed to give reasonable assurance of public safety in addition to court appearance, that judge has no choice but to rely on pretrial services program supervision to see it through. On top of this, remember when I said earlier that if a defendant doesn't have any money, bondsmen and bail insurance companies have no problem letting him or her sit in jail at $100 or more per day. That's a taxpayer burden that they could really care less about. They'll argue to the death how expensive it is to have a guy supervised in the community for $5 per day, but they won't say a thing about the defendants that they leave in the jail.

So it's no surprise that the Sheriffs said "no" to the bondsmen. It would have just been too weird to care about public safety, a fair and efficient justice system, safe jails, and the taxpayers, and then endorse a group that doesn't seem interested in any of those things.  

Bail on the Fourth of July

Well, here it is -- the Fourth of July -- but before I make like Joe Dirt and "keep on keepin' on" by crankin' up some Free Bird and lighting some Black Cats and Nipsy Daisers (with and without the scooter stick), I want to highlight a part of the American history of bail that I think we tend to forget.

America borrowed most its bail laws and practices from England, but at the time of the Revolution one thing that the Colonies definitely did not like about English bail law was how it gave people a right to bail but then simultaneously allowed persons of high authority (like the Crown) the discretion to deny it in any particular case. In fact, the Colonies disliked this discretion to deny bail so much that when they crafted their bail statutes and constitutional bail provisions, they typically articulated broad, unfettered rights to bail for all except those charged with a few (typically capital) cases. Pennsylvania's bail provision, which became the model for virtually the whole country thereafter, articulated a right to bail for all persons except in capital cases "where [the] proof is evident or the presumption great," adding a requirement to consider the evidence even in capital cases.

Both in England and America at the time of the Revolution, if you were bailable, you were supposed to be released. Bail equaled release, and, according to Blackstone, people who were deemed bailable during the Colonial period were almost all released. This was due to how we managed bail at that time, which involved using what we would now call "unsecured bonds" administered primarily through a personal surety system. Indeed, if you read about it, you quickly see that our use of money at bail in Colonial America was vastly different to how it is now. For starters, nobody was allowed to profit from bail. There were no bail bondsmen and no insurance companies, and none of the seediness that tends to follow those groups around. Moreover, if you were a defendant, you couldn't even promise to pay back a surety who took responsibility for you before your trial (i.e., indemnification was not allowed). The personal sureties' responsibility to make sure defendants returned to court was an important one, and the courts rightfully felt that promising to pay those sureties back in the event of a default took away any incentive for them to fulfill their great duty. Finally, the financial conditions -- the amounts of money actually tied to court appearance -- were due and payable only if defendants didn't show up for trial. Nobody had to pay anything up front to get out of jail. Nobody had to come up with fees or collateral for bondsmen. And virtually every bailable defendant was released pretrial. In short, everything worked pretty good.

Think about that on a day like today, when we celebrate the freedom given to us as our birthright. As we celebrate that freedom, remember that we do so not only in the sense of moving away from the "repeated injuries and usurpations" of a tyrannical government. We also celebrate the expanded rights and liberties created in the wake of our separation, which should inspire us, once again, to make whatever changes are necessary to administer bail so that pretrial liberty truly is the norm.    

New Jersey Bondsmen Abuses

The New Jersey State Commission of Investigation recently released a report documenting various abuses in the for-profit bail bond industry. You can read the press release to the report here: http://www.nj.gov/sci/pdf/Press/SCIPressReleaseBail.pdf.

The report is admirable, and likely very helpful to those in New Jersey seeking pretrial justice and bail reform. Even so, there are a few important things that the reader should note.

First, bail bondsmen abuses involving how they run their businesses are nothing new, and they still happen practically everywhere you go. Indeed, ever since we Americans switched from a personal surety system to a commercial surety system in about 1900, we have been steadily documenting bail bondsmen abuses. Around 1922, we saw our first exhaustive report on bail (by the highly regarded authors Roscoe Pound, Dean of Harvard Law School, and Felix Frankfurter, future U.S. Supreme Court Justice), which said that the surety system was flawed, due in great part to bondsmen abuses. Indeed, these two gentlemen called bondsmen "disreputable parasites," and advised of ways to avoid them. Since then, bondsmen abuses have led whole states to abolish the industry, and nearly every country except the United States to refuse to let them in. It has been harder in recent decades to deal with bondsmen abuses, primarily due to their partnerships with bail insurance companies and the highly paid lobbyists that they have hired to turn our attention elsewhere. The fact is that, historically speaking, bail industry abuses by themselves have been enough to eliminate bondsmen from criminal justice systems with no ill effects. Nevertheless, bondsmen abuses constitute only one of about twenty better reasons for why commercial sureties and the insurance companies who support them should be eliminated from all other justice systems. We should remember these things before we focus too hard on recommendations for reforming an industry that perhaps shouldn't even exist.

Second, the report's focus on "privately negotiated discount bail-bond deals" is misplaced. The report implies that if a judge sets a bond at, say, $10,000, and a bondsman makes a deal with a defendant to charge only, say, 1% of the amount rather than the customary 10%, then that deal somehow undermines the judge's order and endangers the public by "putting serious offenders back on the street for a few hundred dollars or less." This misunderstanding of the effects of money surrounding both judicial intent and public safety is unfortunate. Money has nothing to do with public safety, and the only way that money as a condition of release can keep people safe is when it is high enough to detain. Of course, using money to detain isn't necessarily legal, which is why the issue is more complicated than just trying to fix the bondsmen -- that's the judicial intent part. The people in New Jersey currently working on bail reform (at least those to whom I have talked) understand all of this, which is why they're crafting both constitutional and statutory provisions to allow for the fair and transparent detention of high risk defendants based on risk. Money at bail interferes with both release and detention, and fully understanding how that happens -- no matter how high or low the amounts -- is the key to bail reform in New Jersey and elsewhere.

Third, the people of New Jersey should not fall for the notion that if they simply move forward to fix bondsmen abuses, then they can achieve pretrial justice. That's simply not true. Bail reform in New Jersey involves creating an appropriate and lawful "bail/no bail" dichotomy and then adopting legal and evidence-based practices to correctly implement both bail and no bail (release and detention) using risk. It is quite likely that such reform will leave no place for money, let alone commercial bail bondsmen, no matter how much industry oversight is created.

I would have liked to have seen the report discuss bail as a mechanism of release, rather than money, especially since the New Jersey Supreme Court has equated the right to bail with the right to pretrial liberty. Bail reform in America means knowing certain fundamentals of bail. It means knowing how to use terms and phrases correctly. It also means understanding the pretrial research, including the research on money. And it means knowing that bondsmen abuse is just one of those things that's likely to happen -- indeed, it has always happened -- whenever you allow profit into the justice system.

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, Politicians, and Greed

In the story, "Bail Bond Bill Will Create Debtor’s Prisons,” by Bruce Murphy, he asks, “Why are Republicans pushing a bill opposed almost unanimously by criminal justice professionals?”

http://urbanmilwaukee.com/2013/05/21/murphys-law-bail-bond-bill-will-create-debtors-prisons/

Why, indeed? But Wisconsin is not alone. Across America, big insurance company lobbyists are pushing bills designed to increase their profit – criminal justice be damned – by backing bills to insert for-profit bail into the system, or to limit judges in using methods of release that don’t involve sending business the insurance companies' way. In a quote from District Attorney John Chisholm in the article, “The return of commercial bail bonds, will primarily benefit out-of-state interests, the large bail-bond corporations” motivated “purely by financial interests” at the expense of public safety. 

Oh good. Let’s pass it.

But it’s worse than that. I believe that the bail insurance companies want back into Wisconsin just so they can say that it represents a “national trend” toward using for-profit bail. In fact, I was recently at a Senate hearing in another state where the bail lobbyists said that very thing. Never mind that virtually no one in criminal justice, from police to judges, feels that for-profit bail has any meaningful value. Never mind that the bail industry tried to get into Wisconsin before, and failed. Wisconsin is just being used to further the interests of the big bail insurance companies. They have the money, and thus they have access to politicians who, strangely, will pass criminal justice laws that the whole criminal justice system opposes.  

There was a guy at the Senate hearing who said that he teaches on “best practices” at bail. Unfortunately, he is paid quite well to say that for-profit bail is a best practice. He is wrong, of course, and hopefully Wisconsin will rally together to keep this corporate interest out of criminal justice. Believe me, once they are in Wisconsin, the state will see a barrage of new laws each year designed to continue increasing the bail industry profits. It will see a new regulatory bureaucracy necessary to watch over the “problem child” of regulated occupations. Finally, and most unfortunately, it will see unnecessary pretrial detention of those who simply cannot afford to pay the bondsmen’s fee.

Scholars have openly condemned the for-profit bail industry practically since its inception. Wisconsin should be proud to know that it was famously enlightened when it abolished the practice in the 70’s.

Read the story. It shows how ALEC, the various bail insurance companies, and a few lobbyists are using Wisconsin as a pawn in their American bail strategy – just so they can make a buck.