California? Dude!

This is the longest I've gone without a blog. I've simply been too busy spreading basically the same message across the U.S. The gospel according to no money bail will soon be coming to you.

A lot has happened in a month -- some good, some bad, but I really just lack the time to report on all of it. Too many airports and hotels.

California eliminating money bail is an entirely different matter, however, only because I've been warning about this happening for a long time.

In multiple blogs I have warned that the bail insurance companies' strategy of fighting everything and everyone while not offering solutions (no, keeping everything the same is not a solution) would eventually lead to the elimination of the industry. And California is simply the latest case in point.

ABC (oh, by the way, I wouldn't blame the ABC lobbyist for any of this -- he takes orders from the suits in the insurance companies) traveled to California like me and presented its information. Then, when things looked like they weren't going their way, the insurance companies started fighting -- even insulted  the Chief Justice of the California Supreme Court. Nice going, guys. When the time comes to decide whether to keep commercial bail, people remember all that animosity. So now you're gone, and the only thing that can save you is a statewide ballot initiative?

Maybe some of you don't remember, but all of this started a long time ago when a bail insurance guy came to my little county and decided to try to end our county pretrial services unit. When that didn't work, and it looked like we might start making changes to the money bail system in our county, the bail industry really ramped up the fight and even eventually tried to run a statewide ballot initiative, basically picking a fight with everyone in criminal justice. We fought back and won big. The irony? The irony is that it was a lobbyist from a California-based bail insurance company that got that whole fight started in Colorado. Again, nice going. When we end money bail in America, I'll be giving a medal to that particular bail insurance company.

Since then, though, I felt bad about what seemed to be the inevitable plight of the bail agent, and so I spent years laying out a plan that would include those agents in the future of release and detention in America. But the industry did not listen. Instead, through ABC and that other group, it fought everyone -- often personally -- and slowly burned bridge after bridge until finally what you see is everyone simultaneously tossing the industry aside like as an afterthought.

So now I see from the bail insurance companies' posts online that their plan is to -- yes, you guessed it -- keep fighting. Fight without thinking. Fight without strategy. Fight without a solution. I suppose they have to at this point. But it's too late. Even if those insurance companies win, that fight will only further sour attitudes against the industry, and in the next round there will likely be money but no commercial sureties. Count on it. And that's only if they win. Remember Colorado? I spent 6 months of my life fighting the industry and helped us win that initiative 2 to 1. Someone told me they spent millions on that initiative. We spent $10,000.

Bail agents, you've hitched your fate to the bail insurance companies and their lousy strategies. You really should have expected this.

Al Jazeera Video About Bail Reform

Here's a little video about bail reform from Al Jazeera.

I've been watching posts from the bail industry for a long time, and I can tell you that there is nothing in this video that it'll like. It was a bit of a gang fight, with ABC losing due to its inability to concede certain basic facts about the money bail system. 

So . . . I assume that even though someone from ABC was on the show, ABC either won't mention anything about it, or it'll start attacking Al Jazeera and the others personally.

ABC's intentional strategy to argue and fight everything, rather than to think of solutions, is the cause of all of this. Bail agents, this is your future.

A Different Kind of Bail Case

Every so often a case comes across my desk that’s really interesting.

In the old days, if a judge set a money bond, you’d get some opinion on review saying, “We review this for manifest abuse of discretion, we see none here, so affirmed.” Or you might have a one liner saying that the judge didn’t violate the constitution. Or you might – just might – see it sent back to have the money amount adjusted. But not this time.

Nope, this time a federal judge ordered the defendant freed with no money attached. One day the defendant is in jail on a $330,000 bond, and the next day he’s FREE TO GO with NO SKIN IN THE GAME.  

It’s in a case called Reem v. Hennessy, and it’s out of the U.S. District Court for the Northern District of California.

It started with a California Superior Court judge setting a $330,000 financial condition of release for an indigent and homeless defendant named James Reem. When that order went up for review, the habeas court sent it back down saying that the Superior Court judge failed to properly consider alternatives to detention. So the Judge held another hearing, kept the money condition in place, and declared Reem to be high risk for public safety. On review again, the habeas court ruled that setting a money bond for public safety when you can’t forfeit it for public safety is irrational, and thus unlawful (that’ true because it would fail under any legal theory requiring at least a rational relationship between ends and means.)

As an aside, another guy and I have been preaching this for years. If we can get courts to see that in virtually every state setting money for public safety is irrational, that would leave only flight, and my personal belief is that very, very, very few defendants would ever present an unmanageably high risk for flight.

Anyway, even the least skeptical of us would still guess that after the judge was told he couldn’t base it on public safety, he’d just reset bail and, this time, base it on flight. And sure enough, that’s what the judge did – found Reem to be a significant risk of flight – and so he kept the $330,000 condition in place.

Now here is where normally you’d expect things to end. But not this time! This time the reviewing court actually looked deep into the evidence the Superior Court Judge used to set the money bond based on flight and found that the evidence didn’t meet “minimum standards of reliability.” Holy smokes!  

Three times up, and three times the habeas court finds the Superior Court Judge violated the constitution. In the words of the decision: “Here the state has twice failed to correct the constitutional deficiencies in its order. Accordingly, Reem must be released.”

Some in my circles will call this horrible – after all, it took three times to get to the result. But I’ve been around and I call it progress. At the very least, times are certainly changing.

By the way, the bail industry could care less about cases like this. Reem didn’t have any money for a fee, and he certainly couldn’t cover the entire cost of the bond with collateral. But the industry should care, and reviewing courts certainly do care, and it’s cases like this that will change the legal landscape for money bail. The arguments used to release Reem are the same arguments being used to get rid of money bail in all amounts for all defendants. For every case like Reem that the industry lets go by, or doesn’t tell you about, we’re that much closer to the end of money bail.

The Definition of Bail

As more and more states get involved in bail reform, it's good to remind everyone once again about the legal and historical definition of the word "bail." If you Google my name and the title of the document "Fundamentals of Bail," you can read a 100 page justification for why the correct legal and historical definition of bail is a process of release. The process is always conditional, by the way, as even the broadest definitional process will always include a condition to return to court.

The purpose of bail is to provide a mechanism to release people pretrial, just as the purpose of "no bail" is to provide a mechanism to detain people. It's technically improper to say that a purpose of bail is to bring people back to court or to make the community safe -- if anything, these are purposes of conditions of bail or release, or limitations on pretrial freedom.

Bail is not money. Money is a sub-condition of the return to court condition. In secured form, money is a condition to precedent to release, which is why it often keeps people in jail. Some places define bail as money, and you can't really blame them because money was the only sub-condition attached to the return to court condition we had for 1,500 years. We defined  "bail" as money in Colorado for decades until we actually studied bail, and then we changed the definition to better (t's not perfect, mind you) reflect the process. Some states, when making changes to their bail laws, have actually replaced the word bail with the word release. Just recently I read a Missouri court rule that says all bailable defendants have a right to release pretrial. That's the correct way to express it.

If you define bail as money, lots of things will be confusing to you. For example, if you say you want to get rid of "bail," meaning money, other people from other states will wonder what in the world you're talking about because they actually have a right to bail in their constitutions. They'll argue with you and you'll be confused as to why. The bail industry has been trying to use this confusion convince people that the purpose of bail reform is to limit or eliminate the constitutional right to bail. That just ain't true.

As another example, you'll  be confused by what the U.S. Supreme Court has said about bail over the years. When the Court equates the "right to bail" with the "right to release" or the "right to freedom before conviction" as it did in 1951, it just won't make sense if you think bail is money.

As yet another example, you might even be confused by the national standards on pretrial release and detention, which, correctly, describe money as a condition and do not equate it in any way to the process of release.

If bail is release, then the right to bail must be . . .  wait for it . . . a right to release! That's true, too, even though a heck of a lot of bailable defendants don't get released.  Usually, when bailable defendants aren't released, we see bail reform. And we're seeing it now, but it took a heck of a long time to figure out what to do about it. That's due to two things most people simply don't know about bail. The first is called "the big change," which relates to a change America made from English law, and you can read about it in my Model Bail Laws paper. The second it what I call the 8th Amendment loophole, which is based on a line of unfortunate cases, which you can read in my Money as a Justice Stakeholder paper. That loophole, by the way, is being eviscerated by the latest wave of cases against money bail that simply avoid any 8th Amendment claim whatsoever.

I'll leave those for another day. For today, a "basic" of bail is to know it's definition. And that definition is this: bail is a process of conditional release.

By the way, if you're relying on ABC to help you with this bail reform movement, you may want to send them my papers. They tried to define bail in a recent court case, and the federal judge said they got it wrong. Not understanding the proper definition of bail doesn't say much for the people representing you in bail-related matters. That's probably the biggest understatement I could ever possibly make, but that's where we are.

The Bail Industry's New Mexico Problem

So now, after New Jersey, New Mexico is seeing the brunt of attacks against its criminal justice system by the bail industry. You've probably already seen them -- posts on various bogus websites saying, "Look At This Dangerous Guy -- FREE TO GO Under Bail Reform." They attack Chief Justice Daniels. They attack virtually anyone they can find who played any part in diminishing the industry's profits. And then the industry uses the same posts in other states to spread fear of reforming the money bail system in America.

The bail industry even got the Governor of New Mexico to declare that the state should "repeal and replace" the recent constitutional amendment, which passed with nearly 90% of the vote. By the way, last I read the legislature asked the Governor to come over and tell it what was wrong with the one that overwhelmingly passed and to provide her alternative, and she didn't go. I can guess why. Clearly, it's because she didn't know the answer on her own and the bail industry didn't know what to tell her.

There are lots of reasons why all this activity in New Mexico by the for profit bail industry is dumb. For one, most of the guys they list as "dangerous" would've been out under the old money-bail system, and if any of them committed a new crime on release, nobody would lose any money. The amendment was designed to allow judges to detain truly dangerous persons without bail, a concept the bail industry still hasn't quite grasped because one day it's for such a thing and the next day it isn't.

But I want to focus on how the American Bail Coalition (which takes its orders from the bail insurance companies) did the biggest flip flop in the history of bail in New Mexico, and ask why the bail agents are so forgiving of ABC and the insurance companies when they make these giant errors.

Back when the new constitutional bail amendment was written, ABC took credit for it, calling it a "historic compromise." High fives for the bail industry! You can read about how great they thought the amendment was back then right here.

But just last week, ABC called for a new constitutional amendment. Why? Well, because ABC didn't really understand New Mexico, New Mexico bail law, and, in fact, anything about writing constitutional amendments. Anyone paying attention could see that despite what ABC did to the amendment to reach its "historic compromise," it was likely going to spell the beginning of the end of money bail in that state. I knew it. A state legislator knew it (I wrote about that here). I'm pretty sure the bail agents knew it, too.

But ABC and the insurance companies didn't know it. And so, in this most recent post, ABC tries to downplay its previous role (ABC says it only wrote an op ed, but it really helped craft the constitutional language itself), and then spends most of its time personally attacking my friend, Justice Daniels. In fact, this is about the only thing that ABC and the insurance companies seem good at. Fight like crazy, lose, and then attack everyone personally. It happened in New Jersey. It happened in California. It's happening in New Mexico. The problem is that ABC and the insurance companies never take time to recognize a trend created by their laser focus on fighting everyone combined with their inability to even understand bail. 

It reminds me of when ABC wrote a brief in the Harris County case. Really, that should have been some crowning moment for ABC. A chance to really explain to the court what bail is and how to fix it. Instead, the judge dropped a footnote in its opinion and said ABC didn't really even know what the word "bail" meant. I wrote about that here.

So, in the end, this is all that ABC and the insurance companies do. They fight everyone and everything (a strategic problem all its own), but they don't really know what they're saying when they're fighting. They throw up arguments just to see what sticks. They change their stance on fundamental legal principles. Heck, they even change their stance on the very purpose of bail and the commercial surety industry itself. Talk about selling out.

When history records what happened to commercial bail in the third generation of bail reform, a footnote will read that the bail industry tried to mount a defense, but its inability of those leading that defense to understand the consequences of a strategy based on fighting everything, combined with its ignorance of its own industry, caused it to collapse.

The bail industry's New Mexico problem is that it shows all of this in full, odorous bloom.

Bail Industry Language

Deal Bail Industry;

I know you've been struggling for 10 years now to find your footing, but I still believe you haven't quite gotten a handle on what you should and should not say about bail. Accordingly, I'm giving you the following advice about what not to say:

You can't say that money bail makes the defendant "accountable" because being accountable is being held responsible for one's actions, and in bail we haven't even proven that anyone has done anything yet. Accountability is a punishment term, so find a better word.

You can't even say that commercial sureties are "accountable" when, in fact, they push off all the liability and costs to the defendants and their families. Commercial sureties aren't accountable for anything. And bail insurance companies are about fourteen steps removed from even that level of accountability. They literally don't do anything.

You can't say that bail is all about "freedom" on the one hand, and then post a billion Facebook stories about all the horrible people who shouldn't be let out of jail. Face it, you'd be fine with them being let out of jail so long as they paid some money. Your inconsistencies are killing you.

You can't say that "bail is constitutionally protected" when you define bail as money or, worse, as commercial bail. Bail as a process of conditional release is protected by the constitution, not money bail or you. We're not trying to get rid of bail -- we're trying to make it the process of release it was always meant to be, and it just so happens that money gets in the way of that.

You can't talk about public safety period, so stop trying. You can't forfeit money on a bail bond for anything but failure to appear for court. You all actually make a lot of money when people commit crimes while on pretrial release so long as they don't skip court, and you know it. I actually heard a bail insurance dude recently try to link his business (court appearance) to public safety by saying, "When they're coming back to court, they aren't committing new crimes." Man, that's just stupid. What does he mean -- does he mean that while they're actually on the bus coming to court they can't possibly commit a crime? You know public safety is your Achilles heel, but it's the bail insurance companies that created that dilemma over the last several decades. They're the ones who always fought when states tried to allow forfeiture of a bail bond for new crimes. They did it again most recently in Pennsylvania.

You can't say, "They're not in jail because they're poor, they're in jail because of (fill in the blank)." Most of the times that you fill in this blank, you fill it in with something the defendant did, which means the money is punishment and thus unconstitutional. And beyond this, saying that they can't afford their charges or criminal history is just another way of saying they can't afford their risk. Not affording their risk means using money to detain, which is unconstitutional whether it's intentional or unintentional. If you don't know what I'm talking about, you need to read my last paper. And, by the way, if even one person is in jail because he's poor, we need to fix the system.

Oh, and quit bringing up Martin Luther King. The fact that he was once bailed out back in the day is beside the point. If he were alive today, I'm pretty sure he wouldn't be a strong advocate for the money bail system. I already wrote about that here.

I'm not going to help you with what to say because I think the bail insurance lobbyists need to figure that out for themselves. Besides, I've told you all enough of that already, and I'm pretty sure nobody listened.

Just a bit of friendly advice!

Very truly yours,

Tim

What a Difference Five Years Makes!

Back in 2012, the bail insurance companies released a "PR Web" article saying, "Judges Confirm That Bail Bond Agents Play an Important Role in the Criminal Justice System." You see, some bail insurance dudes apparently went to the American Judges Association Conference that year, conducted a "survey," and concluded that 90% of judges say bail agents play an important role. The article is fascinating, as the insurance dude describes handing out his unbiased survey along with several hundred "I Love My Judge" buttons. I think that's how Pew does it, right?

Oh well, cut to 2017, and you can read the new American Judge's Association Resolution Number 2, in which the association urges judges to, among other things, "call for the elimination of commercially secured bonds at any time during the pretrial phase."

Ouch.

So, I think the lesson is twofold. First, the ABC/PBUS strategy of fighting everything is really backfiring. Second, don't necessarily believe what you read from the bail insurance dudes.  

Bail Industry Loses Hard in New Mexico

ABC and PBUS decided on a new strategy lately -- suing the states doing bail reform. It must have seemed like a really good idea at the big PBUS meeting, right?

Yesterday, the judge issued an order denying the industry's request for preliminary injunction in the New Mexico case. And man, that judge denied it hard.

Each substantive claim by the industry is quickly and succinctly knocked down -- sometimes in only one or two double-spaced paragraphs. That's an omen of things to come if and when the industry decides to go to trial. That is, unless you all think the same substantive claim will somehow become rational or legally meritorious between now and then.

Keep up the great work ABC and PBUS! The more you sue the people doing bail reform, the less likely it is that anyone else will even consider including you in any solution.

A Tipping Point in Bail Reform?

I should have spent a bit more time talking about the Conference of Chief Justices’ brief in the Harris County case because it really is remarkable. You can find it here.

Remember that Harris County was sued in federal court over its bail practices, which were built upon the Texas bail laws. In a preliminary injunction, the federal district court judge essentially said that the way Harris County was using money bail violated the U.S. Constitution.

Now normally if that happened in any other area of the law, you’d see all the other states join together with Texas and say, “Whoa, now, we don’t need a federal court telling us how to do stuff – back off and we’ll take care of it in our court system.” And in most other areas of the law, the federal court might think, “Well, maybe I should just defer to the states on this one.”

But when it comes to bail and no bail, the Conference of Chief Justices – made up of the chief justice in every state, D.C., and American territories – essentially said the opposite. It said, “No, we actually need some help from the federal court because, “Despite general consensus and some notable reform, the promise of equal pretrial treatment for indigent defendants remains elusive.” In fact, it said, “Current bail reform practices will remain largely stalled pending clearly articulated constitutional principles that protect public safety and the pretrial rights of indigent defendants.”

The CCJ wrote that technically it wasn’t taking any sides, but then it came right out and wrote: “The Fourteenth Amendment prohibits the use of monetary bail that results in the detention of indigent defendants solely due to inability to pay.” There’s a reason why ABC went on a rant after the CCJ filed its brief, basically calling the justices liars (or “half” liars), blind to the truth, and arrogant (by the way, great strategy, ABC!). Of all the amicus briefs, this is the one that flattens the bail industry. This brief might irritate you, ABC, but you brought it on yourself by fighting the justices at every turn. This generation of reform could have been defined by the bail industry helping the states and the chief justices to find the answers; instead, you all turned it into a war with you versus everyone else. 

To me, the only thing holding back the Fifth Circuit Court of Appeals from affirming the district court would be some concern that it might be infringing on an area that the states felt they could handle. In this brief, the CCJ says, “Go ahead – you’re not infringing and we actually need it.”

If there’s a tipping point in this generation of American bail reform, then August 9, 2017, the day when every chief justice in America asked the federal courts to set limits on how the states use money bail, might just be it.

Money Bail Loses in Harris County, Texas

Those of us out changing bail across America over the weekend already saw this, but if you're just waking up, the federal judge in Harris County ruled that "Harris County's policy and practice violates the Equal Protection and Due Process Clauses of the United States Constitution." What policy and practice is that? It's the traditional money bail system used in jurisdictions all over the country.

The memorandum and opinion is long, but you can read it here.

I'll have more in the future on this, only because it was mostly the bail insurance companies trying to run this litigation. They provided the experts (which were trashed in the opinion), and they supplied all the faulty legal arguments. In fact, you can see that the County was out of its depth through what various county officials said on the record. But this loss isn't a loss for Harris County -- it'll survive and eventually make appropriate changes. But the bail insurance companies are going to have to go back to the old drawing board.

Additionally, and to their credit, many criminal justice leaders in Harris County agreed even before the hearing that the system there was unfair and unconstitutional. That's happening all over the U.S.

Let the spin begin. The bail insurance companies will now be trying to convince the county to appeal. It shouldn't, as it will lead to a tremendous amount of money spent on a futile cause. They'll also try to convince bail agents that, in the end, they'll win. So expect an appeal for more of your money as well.

I've worked in law for a dang long time, and I've worked for federal courts. I've never seen anyone put more time and money into a motions hearing than the bail insurance companies did in this one. But, you see, you can't lobby federal judges. You can't change the constitution. And, in the end, you can't hold on to an inherently unfair money bail system.

“Colorado Model” Isn’t Working So Well?

Man, those bail insurance companies will lie about anything, and especially about Colorado. It’s a long story, but they really hate Colorado for three big reasons, and it’s so juvenile that it would remind you of grade school recess if I explained it to you.

Nevertheless, in a recent post, the insurance companies cite to a story about Boulder County (Colorado) District Attorney Stan Garnett’s concerns over public safety in bond setting. They post the article, and then they say, “Apparently, the so-called ‘Colorado Model’ isn’t working so well.”

Once again, though, the insurance companies are misleading people or likely failed to actually read the story they posted. If they’d have read it, they’d have seen that the DA was having a problem with judges continually letting so-called high risk people out on bonds with money amounts that the DA thought were too low.

That’s not the “Colorado Model” – that’s the “American Money Bail Model.”

The DA cited to a case involving a guy named Lobato as an example”

“Lobato is a good example of a guy who comes in, gets a bond of $10,000, which he is immediately able to make, then turns around and allegedly commits another serious offense and then gets a bond of only $15,000 which [he] is also able to immediately make,” Garnett said. “In hindsight, the (first bond) was not set high enough to protect the public.”

All the other examples he cited were the same. People post money, get out, commit new crimes, and then post more money.

That’s the essence of the money bail system in general, and the commercial surety system in particular, both of which allow high risk people to pay to get out of jail, commit new crimes, and then pay to get out again. And, as usual, nobody ever forfeits the money for these new crimes. That particular law – the law that says you can’t forfeit money for public safety – is courtesy of your bail insurance lobbyists working over the past 50 years, and it’s basically the same in every state in America.

Like I’ve said before, the only amount of money that will keep anyone safe is an amount that detains, and that’s unlawful when set to detain on purpose. So, for now in Colorado, we’re stuck with a system – based on the money bail and commercial surety models – that allows high risk people to buy their way out of jail.

So, let’s review. What model was the judge using in the Lobato case? The money bail model. What’s not working so well? The money bail model. What do the insurance companies want us to continue to use? The money bail model.

Again, we here in Colorado know all that, so the post must be designed only to make bail agents think the bail insurance companies are making progress. They aren't. 

  

The End of Money Bail?

We interrupt this normal break between blogs to give you a link to a Pretrial Justice Institute's press release, which discusses not one, not two, but three separate studies illustrating the flaws and damaging effects of money bail.

Please note all of the important people who signed onto the press release. And that's on short notice! A lot of those people were with me last week as we discussed the end of money bail.

Happy reading!

Bail Reform: Bully Activism at its Best?

Leave it to a bail insurance company to get so many basic things about bail utterly wrong. In a recent post on one of the main bail insurance sites, the company was bemoaning the recent federal lawsuits against money bail. In doing so, however, it makes a few fairly incredible misstatements that I can’t let go without comment.  

First, the insurance company tries to justify bail schedules by talking about how fair and “well thought out” they are. I’ve written extensively about bail schedules, studied bail schedules from across the country, and attended those meetings with the judges and others who create them, and the idea of a bail schedule being anything less than arbitrary and completely irrational is ludicrous. In my jurisdiction, the people who created the schedule picked money amounts out of a hat – no one could even remember what numbers started the whole thing off. And when I looked at all the other schedules here and in other states, I found the same thing. Arbitrary numbers, which were occasionally raised to account for inflation or perhaps headlines, with nobody having any idea about where the amounts even came from.

In fact, to say that the numbers are arbitrary is an understatement. I’ve seen and written about jurisdictions that have doubled every amount on their schedule in blanket fashion, and jurisdictions that halved every amount. Back in the 1920s, bail researcher Arthur Beeley wrote that the fact that the numbers were round numbers – like 5,000 or 10,000 – hinted at their arbitrariness. And he’s right. In fact, until you can argue rationally why $5,000 is the proper amount for an assault, when $4763.47 isn’t (without considering the individual characteristics of a particular defendant, and beyond questioning the 5,000 for other constitutional flaws), you’re just making both of them up. Fortunately in my jurisdiction, the judges eliminated the schedule without being sued, and they did it because the schedule was unfair, irrational, arbitrary, and the antithesis of the kind of individualized bail setting that had any hope of following the constitution. Yes, schedules are often created for benevolent purposes – I’ve written about this, too. But you aren’t paying attention if you haven’t noticed that they frequently evolve into unwieldly beasts that tend to keep more people in jail than out. Our old schedule was nearly 40 pages long, and I’ve seen them as long as 90, but some of the worst just list two numbers – one for all felonies and one for all misdemeanors. Overall, bail schedules are just another manifestation of a flawed and likely unconstitutional money-based bail system, but they have additional issues that make their extinction even more likely.

Second, the insurance company says that bail “is not about release.” Now I would think an entity making money from bail would know something about bail, but apparently not here. If you look deep into the history of bail you will see that the purpose of bail prior to the Norman Invasion was to avoid blood feuds. With the Normans, however, came an entirely new criminal justice system along with the building of jails, and from that moment on the purpose of bail forever shifted to provide a mechanism of release from those jails. Yes, court appearance was a legitimate purpose for setting financial conditions of release, but historically – both in England and America until the 1800s – those financial conditions were virtually always “unsecured” conditions, which meant that nobody had to pay anything up-front to get out of jail. In the 1800s, we ran out of personal sureties, flirted with secured cash conditions, and then ultimately tried the commercial surety business as a way to get bailable defendants out of jail. It didn’t work, which is why we’re here today. Bottom line, though, is that since the creation of jails, bail has always been about release. In 1951, the U.S. Supreme Court equated the right to bail with the “right to release before trial,” and “the right to freedom before conviction.” Is it any clearer than that? 

By the way, whenever an insurance company says that “bail is only about court appearance,” it’s showing its ignorance not only of what bail is and is not (it’s a mechanism of release, and it’s not money, which is a condition of release), but also of how bail has evolved to allow for release with conditions to provide reasonable assurance of both court appearance and public safety. The bail insurance companies’ complete disregard of safety as a legitimate public concern is one reason why we’re seeing bail reform to begin with. 

Third, the insurance company writes that the idea that money bail might discriminate against the poor “couldn’t be further from the truth.” As my dear friend’s delightful middle school daughter might respond, “OMG!” Doesn’t discriminate against the poor?! Are you nuts? It’s a money-based system, for goodness sake. Bail agents only help defendants with money. If defendants have money, they get out. If they don’t have money, they stay in. Really, this is something a child in grade school would know.      

And arguing that the money bail system doesn’t discriminate against the poor because so many poor people rely on the bail industry is like saying that separate but equal eating establishments weren’t discriminatory because all of the people eating in the “colored” restaurants were African Americans. I’m not trying to shock or offend by using a racial analogy, but I’m using it on purpose because in the post that I read, the insurance company not only made that argument – it also had the enormous audacity to write that money bail “supports racial and socioeconomic equalities.” That’s monumentally false, and anyone who believes it really has no place in criminal justice.

Overall, the insurance company piece provides a trifecta of fundamentally wrong statements about bail, leading me to conclude that this particuar company might be better suited to discuss something like health insurance. Or whole life. And, as usual, the way this goes is that once the insurance company makes wrong statements, people everywhere start correcting those statements. This not only makes them look bad, it also makes every single bail agent out there look bad, too. I hope it's just ignorance. Heaven help them if they're saying all this just to make money.  

What’s Wrong with the PBUS Agenda?

I just received a copy of the 2016 PBUS Winter Conference Agenda, and it includes a breakout session called “Lessons from Beyond New Jersey: Understanding the Arguments and Solutions of the New Generation of Bail Reform and Pretrial Release.” More specifically, it says the panel will “inform bail agents of the threatening arguments being made against the bail industry, arm agents with the ‘new’ vocabulary to use against such arguments and most importantly, educate bail agents about what solutions can be offered to minimize threats affecting the bail industry.” A good topic, right? What could possibly be wrong with it?

Well, for one thing, the person listed first on the panel is an insurance lobbyist who used to run the American Bail Coalition, which is no friend to bail agents. In fact, when I first started working in bail reform, ABC’s main stance was that there was no bail reform movement, there never would be, and that there was no reason for anyone to worry. It got that issue pretty wrong – the PBUS agenda is now calling it a “new generation of bail reform,” something I figured out and published five years ago. Since then, ABC has been wrong about a lot of things.

This generation of bail reform, as most of you now know, is not so much a fight against bail agents as it is a fight about money at bail – which is why the statement on the agenda of all the “threatening arguments against the bail industry” is so misleading. For example, I know the people working on the constitutional amendment in New Mexico, and they rarely talk about the commercial bail industry. Instead, they find fault with the lack of public safety in a money-based system and with secured financial conditions that not everyone can pay. So if you get to the panel on lessons from New Jersey and all they talk about is how to fight to keep things essentially the way they are today – with bail agents only involved with arbitrarily inflated financial conditions, with your focus only on court appearance and not public safety, and with insurance companies making money for doing nothing – then I hope you’ll ask them to give you some other ideas.

The real lesson from New Jersey – and now numerous other states – is that when people are fully educated in bail, they automatically move toward change, and that change involves adopting a risk-informed system of pretrial release and detention (both for assessment and supervision) using less or no money. This lesson is playing out across the country, and I can’t even keep up with the states, entities, and persons who are all going in the same direction. By arguing to keep things the way they are, ABC is on the wrong side of history.  

I’m about the only one saying this, but I’m being honest. A true private/public partnership in bail is only possible through what I call “private pretrial.” Some of my public pretrial friends don’t like when I mention it, and others don’t care because they don’t think you can pull it off. But I do, and I’ve seen it work. I’ve written about it enough that I don’t have to explain it here, but realize this: because the bail insurance companies wouldn’t exist in a “private pretrial” world, they’ll tell you that it’ll never work and convince you to keep fighting for the status quo.

Last month alone I worked with the White House, DOJ, five different states (of over 20 states that I worked with last year), and numerous public and private entities trying to “fix” bail, and they all intend to make major improvements because they don’t perceive anything valuable about the existing system. Meanwhile, the current head of ABC was on some funny little radio show calling bail reform “an epic battle” and arguing that if we dare to move from the way things are, we’ll be “setting a course for planet hell” and be required to create “state and local level U.S. Marshall’s Service” to go catch all the inevitable skips. Okay, maybe talk radio is made for hyperbole, but man, that last part is just plain crazy.

Don’t be fooled, bail agents. The bail insurance companies will use the “war against you” analogy simply to get you riled up to fight the bail insurance companies’ fight. But their fight is simply not in your interest. If you only believe one thing that I say, believe this: no matter what the bail insurance companies say, most states have decided that the current system – with all of those huge amounts of money based on charge – is fundamentally flawed, and so it’s going to change. Your goal should be to see where you fit into the new system. Arguing for the status quo, which is really the only argument the insurance companies have that will continue paying for their executives and their lobbyists, will ultimately only ensure that you’re not any part of the system we create.  

So what’s wrong with the PBUS agenda?  Well, from here it looks mostly as if the panelists on bail reform are going to try to convince you to fight to keep the status quo – to “arm” you with a new vocabulary, to help you to counter various arguments and to “minimize threats” to the way things work today. But they don’t seem to be offering any advice on how you can fit in when the country makes its inevitable shift. I won’t be there, but maybe you should ask them about all that. 

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. 

Sandra Bland: Her Bail Amount “Was Not Significant”

No, I didn’t say this – a bail insurance company lobbyist did. The quote, in full, is actually, “The issue of bail had nothing to do with this person’s suicide, in my opinion. The amount was not significant and the family was working with a bondsman to post bail.”

This gives you a bit of insight into the people behind our traditional money bail system. Bail insurance company lobbyists could really care less about the humans who bear the brunt of a broken system of bail in America. Let’s break this quote down.

“Not significant?” Well, it kept her in jail, so I think that’s pretty significant. The most interesting conversations I have with commercial bail people happen when they talk about amounts that are “significant” or “reasonable.” Some time ago, a commercial bail guy came to our local county justice meeting and, with a completely straight face, said, “The other day I saw a judge set bail at $50,000, which is reasonable, but another judge set another bail at only $500, and that’s just wrong.” To a bail insurance company lobbyist, amounts are reasonable when they can make money off of them, and they’re unreasonable when they can’t. And only an overpaid lobbyist could ever say that a $5,000 financial condition isn’t significant.  

“Working with a bondsman?” Well, there’s an article out there saying that some bondsman actually called Sandra’s mother, but that was it. I assume the phone call went something like this: “Your daughter’s bail is $5,000, so to get her out of jail you’ll have to come up with a $500 non-refundable fee for me and then put up some collateral to cover the rest.” These kinds of conversations happen every day across America, and they’re why it takes an average of 10 days for people to bond out through commercial sureties. And in those ten days, research has found, a lot of really bad things can happen.

“The issue of bail had nothing to do with [Sandra’s] suicide?” The bail insurance guy says that “there were clearly other issues [going] on in this person’s life.” What kind of issues? Everybody has issues going on in their lives, and no matter how significant those issues are, you can bet that if the person is stuck in a cage, incarceration is issue number one.  

This is the problem with bail insurance companies – the groups who lobby hard to keep the commercial money bail system alive in America – they simply don’t have any compassion or common sense. It’s a problem that we’ve had with this industry ever since we created it in 1900. And it’s a big problem in Texas, which is kind of an enclave for bail insurance companies and the lackeys that these insurance people hire to try to muddle and spin the tragedy of money bail.

Let’s face it. There’re at least three big issues that need to be addressed concerning the death of Sandra Bland: (1) her arrest; (2) the nature of her detention; and (3) the money bail that kept her in jail. Because bail insurance companies make money on number three, they’ll be hoping that everyone – including you – will focus only on numbers one and two.

Don’t do it. 

Sandra Bland and the Tragedy of Money Bail

I’ve been around my share of death and dying, and so I can’t begin writing about such a tragic event as this without first offering my prayers to the friends and family of Sandra Bland. I’m truly sorry for your loss, and to the extent that God can use this horrible event to open the eyes of the ignorant and to save others, then I hope that you’ll understand my need to write about it.

A lot of people have written about possible law enforcement and jail staff abuse and missteps, but let’s be clear here: this case is also about money bail and the use of an insidious hallmark of the money bail system – the bail schedule.

In America, we have a system of justice that requires and thus includes gatekeepers – judges – who, through their neutrality, objectivity, and oath to follow the constitutions of their states and of the federal government, are asked to right wrongs by balancing the actions of the government with the liberties afforded to America’s citizens. At the very beginning of a criminal case – any criminal case, and especially a criminal case that maybe shouldn’t be a case to begin with, judges must hold a prompt first appearance, find probable cause for the arrest, and set bail. In Texas, people have a right to bail, except in limited cases, and the U.S. Supreme Court has equated the right to bail broadly as “the right to release before trial,” and “the right to freedom before conviction.”

Criminal justice may never be arbitrary, and to keep things non-arbitrary, we use standards. By having a set of standards and applying those standards to each individual defendant, we make sure that criminal justice practices and punishments remain non-arbitrary and thus lawful. The best example of this is in death penalty jurisprudence. The Supreme Court has said that the death penalty may never be arbitrary, and so we have cases articulating how to create lawful standards so as to separate those defendants who might receive that penalty from those who might not.

The same is true in bail, which is why the U.S. Supreme Court in 1951 said that, “because the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant.” And when the American states read this quote, they knew exactly what the Supreme Court was talking about. Accordingly, across America, states inserted into their bail laws what I call “individualizing factors,” which typically require judicial officers to look at each defendant using various criteria to determine bail. Texas, which has a pretty lousy bail statute, nonetheless has a provision based on individualization. It’s not as good as other states, but it nonetheless says that whenever a judicial officer sets the amount of bail, he or she must take certain things into account, including community safety based on the alleged crime, the defendant’s financial ability, and the nature of the crime – all factors that can only be ascertained through an individual assessment of the defendant. The statute also says that “the power to require bail is not to be so used as to make it an instrument of oppression,” but that’s a whole other blog.

Instead of following this statute, however, apparently the four justices of the peace in the county in which Sandra was arrested decided to create what we call a “bail schedule.” Bail schedules are documents ranging from one to 100 pages that typically include only a charge and an amount of money corresponding to that charge. Under a system based on a bail schedule, all defendants, despite whatever individual characteristics they have, pay the same amount to get out of jail. I’ve written about bail schedules for as long as I’ve been studying bail, and I believe that they’re unlawful for a number of reasons and under a number of legal theories.

We’re beginning to see that the use of secured money conditions (requiring people to pay money in order to get out of jail) is unconstitutional. But setting those conditions pursuant to a bail schedule is what I call “super-unconstitutional” (a word that’s perhaps only fitting in the world of bail). By using a schedule in the case of Sandra Bland, the justices of the peace ignored their own statute, ignored the U.S. Supreme Court opinion emphasizing the need for individualized standards, and even ignored our well-accepted notion that criminal justice may never be arbitrary.

And because of that willful ignorance, Sandra Bland sat in jail when she didn’t have to.

The government claimed that Sandra violated the law and so it was ready to run her through the machine to prove it to be true. But the justices of the peace violated the law, too. What are we going to do about them? 

Pennsylvania Lawmakers Back Commercial Bail?

I should call this “Bail Agents: Insurance Lobbyists Are Not Your Friends, Part II,” as it illustrates exactly what I wrote about last time.

In a recent blog, a bail insurance company lobbyist wrote that by enacting SB 397, Pennsylvania lawmakers somehow showed support for commercial bail. I don’t think so, and if you read it, I don’t think that you’ll think so either. In fact, everything I read indicates that Pennsylvania was trying to add regulations to the bail bond industry “by requiring that all bail bondsmen play by the same rules,” according to the sponsor, Rep. Bryan Cutler. Clamping down on an industry through additional regulations isn’t really “backing” it.  

So what did the legislation do, and why do the insurance companies like it so much? Well, the biggest thing it did was to require all bail agents to have insurance company backing – or, as the lobbyist put it, “to be appointed by an approved surety insurer.” God forbid there should be any bail agents in Pennsylvania without insurance company backing, and so this bill fixed that. The whole thing is a pretty good deal for the insurance companies, and it might be a good deal for bail agents and the people of Pennsylvania except for one thing: having an insurance company back a bail bond doesn’t do anything for anyone because the insurance companies never pay any losses.

They even admit to this. In fact, the bail insurance companies are so confident about their place in the system that one lobbyist recently bragged to a reporter for Mother Jones that the lobbyist’s company had been in business for 107 years and never once – NEVER ONCE – paid a single forfeiture. So bail agents are required to have insurance company backing, but is there really any backing if they never pay? It’s free money for the insurance companies, which is why they’re fighting so hard to keep it rolling in. 

So, then, if insurance companies don’t pay, who does? Well, defendants, defendants’ families, and bail agents pay, that’s who. If you’re a bail agent, you already know that, just like you know about buildup funds. In the surety bail system we have today, bail agents do everything, they’re on the hook, and they’re expected to drop bags of money on the steps of the insurance companies or face the consequences. If it looks a bit like the Godfather Part IV, it is. Deep down, bail agents know that they don’t need any help from insurance companies, no matter what those companies tell the state legislatures.   

So don’t let these lobbyists tell you that SB 397 did anything good for bail agents, and for goodness sake, don’t let them tell you that the whole thing showed that Pennsylvania “backs” commercial bail. This is the twisted world of the bail insurance companies, which help lawmakers put restrictions on bail agents designed to make the insurance companies money, and then try to sell it to bail agents at the various conventions. Your honor, I refer to the case of lipstick versus pig.

Bail agents, this is your one and only chance. If you really want to have a place in the world of American pretrial release and detention – if you truly believe in private pretrial partnerships with public criminal justice systems – don’t listen to the insurance companies. The future of American pretrial release and detention, public or private, does not have a place for bail insurance companies. They know this, and so they’re going to fight to keep everything the same until the end. But just remember, they're not your friends, and their fight is only going to take you down.

36 Words

I’m not quite sure how this didn’t make the front page of the New York Times, because it’s the beginning of the end of money bail in America. The other day, in a federal court case in Missouri, a judge issued a declaratory judgment containing the following 36 words:

“No person may, consistent with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, be held in custody after an arrest because the person is too poor to post a monetary bond.”

You can read about the case, and hear from my friend who filed it, Alec Karakatsanis, here: http://www.stltoday.com/news/local/crime-and-courts/settlement-in-federal-lawsuit-abolishes-cash-bail-for-velda-city/article_00e68a2a-5edd-5423-abac-1af69ae2f018.html.

These 36 words turn every single thing we’ve been doing in bail in America on its head. For over 100 years, we’ve been using money bail to detain people, both unintentionally and intentionally, and I predict now that it’s all going to end – beginning with these 36 words.

If you don’t believe me, send the words to anyone you know involved in state court bail-setting in America, and ask those people what they’d do if they had to abide by them. After an initial “holy crap” moment, they might say something like, “Well, how in the world are we going to keep those really dangerous people in jail?” The answer is that they’ll have to start employing empirical risk assessment to identify those “really dangerous” people, and then they’ll have to change their constitutional bail provisions and statutes to allow them to detain defendants based on risk. It’ll be an in-or-out system, with none of the arbitrariness and randomness of our current money-based system. It’s a wholly different release and detention scheme, and it has few of the hallmarks of bail that they’re probably used to.

So if you’re in a state that’s grown accustomed to secured money bail, accustomed to bail bondsmen, accustomed to insurance company lobbyists, accustomed to poor people in jail and only rich people out of jail pretrial – essentially, accustomed to the failed way that we’ve done bail and no bail for over 100 years in America, get ready to change. I’ve said it before. If you don’t change on your own, someone’s going to force you. And that force might just come from only 36 words. 

Bail for the Bikers -- Stack v. Boyle II?

Once upon a time in America, government officials arrested 12 persons and charged them with violating the Smith Act, which made it against the law to advocate overthrowing the U.S. government. The Smith Act mostly was used to prosecute communists, anarchists, and fascists – people we didn’t like and who scared us, and these particular 12 people were believed to be communists. A judge, looking at these 12 defendants, set each of their financial conditions of release (some would say their “bail”) at $50,000.

Looking at these bail settings in the 1951 case of Stack v. Boyle, the U.S. Supreme Court ruled that they were unlawful. In particular, the judge didn’t take into consideration any individualized factors that help make those bail settings non-arbitrary, the judge apparently based the amount on a single factor – the charge – which the Court expressly said was an arbitrary act, and that the judge didn't consider any evidence so that the amounts would be “reasonably calculated” to provide assurance of court appearance.

In his concurrence, Justice Jackson elaborated a bit. He said that the practice of admission to bail “is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial.” Instead, he wrote, “the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty.” When presented with the argument that the bail-setting court fixed uniform blanket sums by merely looking at the charge and not at each defendant, Justice Jackson wrote, “If this occurred, it is a clear violation of [federal law]” and that to assume that each defendant was completely identical to each other defendant at least violated the law of probabilities. When presented with the argument that the bail-setting court used the amounts to keep these communists in jail on purpose, Justice Jackson wrote that such a use “is contrary to the whole policy and philosophy of bail.” In fact, we now have appellate court opinions that clearly state that setting bail with a purpose to detain people is unlawful.

Fast forward to this week, when government officials arrested 170 people in Texas and charged them with engaging in organized crime. When we use that charge, we mostly go after people we don’t like and who scare us, and these particular people happened to be in motorcycle gangs. A judge, looking at these 170 defendants, set each of their financial conditions of release (some would say their “bail”) at $1 million. You see where I’m going here, and it doesn’t take a genius to notice the similarities between one of our biggest bail cases in America from 1951 and what happened this week in Waco.

Honestly, if our own judges can’t keep track of U.S. Supreme Court precedent, how are we to improve? Today, we actually know how to deal with extremely high risk defendants. And if any – or all – of these defendants are extremely high risk, then they should be detained without bail. But if they’re high risk, setting money bail to detain them is not the answer.  

I’m weary of explaining why. That hasn’t always the case, as usually the explanation is a new thing to judges, who aren’t necessarily trained in social science research, statistics, or other fundamentals of bail that don’t deal with the law. But I shouldn’t have to explain to a judge what the U.S. Supreme Court has said, or is likely to say, about how to set bail.

The history and the law tell us that both bail (release) and no bail (detention) are lawful if you do them right. In this single act of setting 170 identical financial conditions, this judge simultaneously did both bail and no bail wrong.