Here is a link to a report issued by New Jersey's Joint Committee on Criminal Justice, the committee created by the Chief Justice to address issues at bail: http://www.judiciary.state.nj.us/pressrel/2014/FinalReport_3_20_2014.pdf.
The document is remarkable for many reasons, but mostly because it represents the first time an entire state has figured out the essence of what is needed for bail reform in America and is actually going to work to achieve it. The document reports "problems at both ends of the spectrum," meaning that it is having trouble with both "bail," or release, and "no bail," or detention, in that state.
States can create a model bail scheme by simply recognizing the sorts of things that New Jersey has recognized. First, both "bail" and "no bail" are lawful if we do them correctly. Thus, it is entirely proper for a state to change its statutes (and constitution, if necessary as it is in New Jersey) to set up a scheme in which people are both released and detained pretrial in the proper ratio.
Second, doing each part correctly is not so hard, as we have currently the sort of research, best practice recommendations, and model jurisdictions to help with both "bail" and "no bail." Essentially, the no bail side has to hold up to various constitutional principles designed to make it extremely limited. The bail side must use evidence-based policies and practices designed to attain the three goals underlying the bail process: (1) maximize release of bailable defendants; (2) maximize public safety; and (3) maximize court appearance. The hardest part is simply figuring out how to infuse empirical pretrial risk into a system that has for too long been based on inefficient proxies for risk, such as top charge.
Overall, we must watch the New Jersey experience closely, for if we look at our American bail laws today, we see that virtually every state is in need of reform. In many states, that means changing both statutes and constitutions to best effectuate the "bail/no bail" dichotomy. Moreover, New Jersey is a good example of what we call a "top-down" state, in which prominent state leaders, such as the Governor and Chief Justice, have declared that bail will be reformed. I have personally seen that the progress made by "top down" states eclipses whatever progress we have seen in "bottom up" states, such as Colorado, in which a few committed reformers continually fight special interests without the help of most state leaders.
Tuesday, March 25, 2014
Sunday, March 9, 2014
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.
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.
Wednesday, March 5, 2014
Bail Legislation -- Ugh
I haven't posted for a while, primarily due to it being the legislative season in Colorado. For those of you in bail, you know that legislative season means bondsmen, insurance companies, and various trade groups who make money at bail are busy creating new bills hoping to make even more money at bail.
I have worked with legislation all over the country, and I have noticed that nearly every bill designed by the for-profit bail industry has three or four things in common. First, nearly every bill is designed to take away judicial discretion whenever possible. That's because when judges actually use their discretion at bail, they are likely to choose not to use a commercial surety. There are a lot of reasons for this, which range from bondsmen declining to help many defendants (the ones without money), the bondsmen's lack of concern for public safety (they don't lose money if their client commits a new crime, only if he or she doesn't show up for court), and the fact that the bondsmen's core values simply differ from judges and others in the criminal justice system (they care about money, not necessarily about reducing harm or victims).
Second, nearly every bill is written to limit what many call "personal recognizance" (PR) bonds and some call release on "own recognizance" (OR). Again, this is because those types of release don't make the industry any money. Limits on PR or OR represents an antiquated view of bail in that they focus on only one single condition of release -- money -- over all other conditions. You rarely see the bail industry running bills to limit the use of drug testing or GPS monitoring. You really only see them trying to reduce the things that keep them from making money. A lot of times, that's release on PR and OR.
Third, nearly every bill will include some language that hinders the use of pretrial services supervision. Pretrial services programs are entities designed to help judges figure out which defendants are too risky to release, and they provide supervision for those defendants who aren't too risky. Judges like the programs because they're neutral, they supervise for public safety and court appearance (remember, bondsmen don't care about public safety, only court appearance), and they typically take on everyone -- i.e., they don't keep you in jail simply because you don't have any money. The commercial bail industry rightfully sees these programs as direct threats to their business, and so they do what they can legislatively to mess them up.
Fourth, and this is when the industry really tips its hand, many times the bill will be written to set minimum financial condition amounts so that the bondsmen can be assured that they will make a decent profit. It's not enough to tell a judge he has to use commercial sureties and that he can't use PR or OR bonds, because the judge might -- heaven forbid -- still set a commercial surety bond at only twenty five dollars or something. How do you expect good businessmen to make any money with that going on? The industry needs financial conditions in the $10,000 to $100,000 range. But not too high, as one bondsman in California once explained, because if it's too high the bondsmen might not be able to write the bond either. Too low is no good, and too high also is no good. No, we need amounts in a certain range. If only there was a law that forced judges to ask bondsmen what the amount should be in any given case. Maybe next year.
From the beginning of bail until about 1900, England and America used primarily unsecured bonds (money only due and payable by a defendant on the back-end only if he or she didn't show up for court) administered through a personal surety system (people who were not allowed to make money at bail and could not even be indemnified for any loss). Starting in about 1900, America switched to primarily using secured bonds (whereby a defendant or his family must typically pay something on the front-end just to get out of jail) administered through a commercial surety system (people who are paid for the "service" and indemnified against any loss). This relatively new way of doing things has failed miserably, however, and is in need of reform. We have known this since about 1920, but we have a whole bunch of people who make a lot of money in bail that are hell-bent on making sure that the money doesn't dry up. Those people aren't just bondsmen, who I personally like. They are often lawyers and lobbyists for big insurance companies, supported by slippery black-bag organizations like ALEC, who spend all of their time trying to get lawmakers to make changes to help them out. ALEC is a whole other story, and I suppose I'll write about it soon enough. For now, it should be enough to tell you that if you are a rational and thinking person, and if you don't own stock in some bail insurance company, you should probably be against anything that ALEC is promoting concerning bail.
Like I have written before, you can't fault corporations from trying to make money -- that's what we tell them to do. In fact, our laws are structured so that if someone heading up a corporation doesn't make money, we can kick him or her out for breach of their fiduciary duty to make money. Still, we can be vigilant in watching when bills are introduced to make sure they serve some public policy beyond just making corporations money. This is especially true in criminal justice, and, more specifically, bail.
Anyway, that's my excuse for not blogging. Yet again in Colorado, we all had to stop everything and fight a bill written by the commercial bail bond industry. It was pretty easy to spot, though. It limited judicial discretion, put limits on PR bonds, tried to mess up pretrial services programs, and set minimum amounts for certain bail bonds. You know, the usual stuff.
I have worked with legislation all over the country, and I have noticed that nearly every bill designed by the for-profit bail industry has three or four things in common. First, nearly every bill is designed to take away judicial discretion whenever possible. That's because when judges actually use their discretion at bail, they are likely to choose not to use a commercial surety. There are a lot of reasons for this, which range from bondsmen declining to help many defendants (the ones without money), the bondsmen's lack of concern for public safety (they don't lose money if their client commits a new crime, only if he or she doesn't show up for court), and the fact that the bondsmen's core values simply differ from judges and others in the criminal justice system (they care about money, not necessarily about reducing harm or victims).
Second, nearly every bill is written to limit what many call "personal recognizance" (PR) bonds and some call release on "own recognizance" (OR). Again, this is because those types of release don't make the industry any money. Limits on PR or OR represents an antiquated view of bail in that they focus on only one single condition of release -- money -- over all other conditions. You rarely see the bail industry running bills to limit the use of drug testing or GPS monitoring. You really only see them trying to reduce the things that keep them from making money. A lot of times, that's release on PR and OR.
Third, nearly every bill will include some language that hinders the use of pretrial services supervision. Pretrial services programs are entities designed to help judges figure out which defendants are too risky to release, and they provide supervision for those defendants who aren't too risky. Judges like the programs because they're neutral, they supervise for public safety and court appearance (remember, bondsmen don't care about public safety, only court appearance), and they typically take on everyone -- i.e., they don't keep you in jail simply because you don't have any money. The commercial bail industry rightfully sees these programs as direct threats to their business, and so they do what they can legislatively to mess them up.
Fourth, and this is when the industry really tips its hand, many times the bill will be written to set minimum financial condition amounts so that the bondsmen can be assured that they will make a decent profit. It's not enough to tell a judge he has to use commercial sureties and that he can't use PR or OR bonds, because the judge might -- heaven forbid -- still set a commercial surety bond at only twenty five dollars or something. How do you expect good businessmen to make any money with that going on? The industry needs financial conditions in the $10,000 to $100,000 range. But not too high, as one bondsman in California once explained, because if it's too high the bondsmen might not be able to write the bond either. Too low is no good, and too high also is no good. No, we need amounts in a certain range. If only there was a law that forced judges to ask bondsmen what the amount should be in any given case. Maybe next year.
From the beginning of bail until about 1900, England and America used primarily unsecured bonds (money only due and payable by a defendant on the back-end only if he or she didn't show up for court) administered through a personal surety system (people who were not allowed to make money at bail and could not even be indemnified for any loss). Starting in about 1900, America switched to primarily using secured bonds (whereby a defendant or his family must typically pay something on the front-end just to get out of jail) administered through a commercial surety system (people who are paid for the "service" and indemnified against any loss). This relatively new way of doing things has failed miserably, however, and is in need of reform. We have known this since about 1920, but we have a whole bunch of people who make a lot of money in bail that are hell-bent on making sure that the money doesn't dry up. Those people aren't just bondsmen, who I personally like. They are often lawyers and lobbyists for big insurance companies, supported by slippery black-bag organizations like ALEC, who spend all of their time trying to get lawmakers to make changes to help them out. ALEC is a whole other story, and I suppose I'll write about it soon enough. For now, it should be enough to tell you that if you are a rational and thinking person, and if you don't own stock in some bail insurance company, you should probably be against anything that ALEC is promoting concerning bail.
Like I have written before, you can't fault corporations from trying to make money -- that's what we tell them to do. In fact, our laws are structured so that if someone heading up a corporation doesn't make money, we can kick him or her out for breach of their fiduciary duty to make money. Still, we can be vigilant in watching when bills are introduced to make sure they serve some public policy beyond just making corporations money. This is especially true in criminal justice, and, more specifically, bail.
Anyway, that's my excuse for not blogging. Yet again in Colorado, we all had to stop everything and fight a bill written by the commercial bail bond industry. It was pretty easy to spot, though. It limited judicial discretion, put limits on PR bonds, tried to mess up pretrial services programs, and set minimum amounts for certain bail bonds. You know, the usual stuff.
Thursday, January 2, 2014
The Pretrial Justice Movement in 2014
Last night on television,
Thomas Cahill, a man who has studied and written about history his whole life,
mentioned in passing that he believed all historical movements to be either
based in kindness or cruelty. Perhaps it is that simple. Certainly it is in
bail, where the entire movement toward a secured money system administered by
commercial sureties in America was described by Robert Kennedy in 1964 as
“cruel and costly.”
But if it is cruelty that has
led us to this place in history, then it is surely a movement of kindness that
seeks to take its place. Pretrial justice in America is merely a movement of
kindness – kindness toward all persons, especially those whom the Bible calls
the least of us.
2014 will be a year in which all Americans understand
that the infusion of secured money into bail has resulted in a bail system with
cruelty at its very core. Hopefully, they will also understand that it will be
empathy and kindness – a movement of
kindness practiced by those who
seek only to follow God’s will – that can alter a system from which so many
profit.
Thursday, December 26, 2013
Bail Insurance Companies and the Arnold Foundaton Research
The Arnold Foundation has
released some fascinating research using big data-sets to help further pretrial
justice. If you want to read about the research, go to:
I’m going to talk about only one
of the research papers because the commercial bail insurance industry has
already misinterpreted it for their own gain.
The Arnold researchers, using
some really sophisticated statistical analyses, demonstrated that lower risk (as
determined by the current Kentucky pretrial risk instrument) defendants
detained for more than 24 hours were more likely to fail to show up for court
and to commit new crimes both short and long term. This is an important finding
that leads us to try to persuade judges to do everything in their power to
release a lower risk defendant once that defendant is deemed safe enough to be
managed within the community. Since money tends to detain and to prevent
release of bailable defendants, doing things like setting a surety bond will
actually increase the risk to public safety and court appearance whenever that
type of bond delays or prevents release. And, of course, those types of bonds
both delay and prevent release.
By the way, I recently
reported on a study by Dr. Michael Jones showing that there was no difference
in public safety or court appearance rates when judges used unsecured (having
to pay money only if the defendant fails to appear) versus secured (having to
pay money up-front in order to get out of jail) bonds. Thus, these two studies
together should guide judges naturally toward using unsecured bonds whenever
those judges think that money is an appropriate condition of release.
Personally, I don’t think money is ever appropriate, but for those judges
having a hard time with that idea, using an unsecured bond at least gets the
defendant out of jail quickly – thus avoiding the deleterious effects of
short-term detention – and at no cost to public safety or court appearance
rates.
I think the bail insurance
company lobbyists recognize this important coupling because now they are trying
to pick apart the Arnold study. Basically, the bail insurance companies make a
lot of money when judges set surety bonds and are content to wait around while
defendants take a week or more to come up with the money they need to get out
of jail. That is, essentially, one of the biggest problems with a secured bond
system administered through commercial sureties: it leads to people taking
longer to get out of jail, and some people never get out at all for lack of
money. Now it looks like keeping people in jail for even those short periods of
time is messing up them and society as a whole. Really, we didn’t need a
sophisticated study to tell us that.
The purpose behind limiting
someone’s pretrial freedom is court appearance and public safety – not just
court appearance as the bail insurance companies say. Moreover, bail never
means any kind of “guarantee,” which is what the bail insurance companies appear
to be saying as well. The United States Supreme Court has been clear in saying
that all we can expect from pretrial release is “reasonable assurance” of any particular
outcome, such as public safety or court appearance. There are no guarantees in
bail – risk is inherent and, in fact, necessary to our very democracy. Saying
that a surety bond is a guarantee of court appearance not only misapprehends the
foundations of bail, it is incredibly misleading. In fact, a surety bond doesn’t
even give us reasonable assurance.
Saturday, December 7, 2013
Nelson Mandela
“It is said that no one truly knows a nation
until one has been inside its jails. A nation should not be judged by how it
treats is highest citizens, but its lowest ones.”
Nelson Mandela (1918-2013)
Monday, October 28, 2013
Bail and Money
Not much time to blog lately, but that’s only because it’s an exciting time for pretrial justice. Jurisdictions around America are seeing the benefits of improving various parts of the pretrial phase based on legal, historical, and empirical research. And one of the best empirical studies ever has to be this one from Mike Jones over at the Pretrial Justice Institute. Essentially, this study says that secured money doesn’t matter for keeping people safe or for court appearance. I’ve been saying that for a long time, but now Mike has gone and proved it.
Secured money does matter, however, if you want to keep people in jail. No big surprise there – defendants who have secured financial conditions on their bail bonds (either cash or surety) stay in longer and some don’t get out at all. It’s fascinating, too, because the study also shows that a whole bunch of those folks who stay in the entire time end up getting released just as soon as they plead guilty. Too risky to release pretrial, okay once we know they’re guilty. It’s a strange world.
America ushered in the commercial bail bond system and defendant self-pay laws at the end of the nineteenth century primarily because we had a problem with bailable defendants being unable to find sureties willing to do it for free. Unfortunately, the new commercial system was based primarily on secured bonds, and so we only exacerbated the unnecessary pretrial detention issue.
Whenever commercial bail bondsmen and their big insurance company lobbyists say that we should keep them around because they are good going out and finding folks who have skipped court, these days I just say, “Who cares?” If you take 100 defendants and you whittle them down to that smaller percentage who are actually released on a surety bond and who then skip court, you’re looking at about one or two people. So even if you believe that the bondsmen go out and get those two people (I don’t believe it and I have research to prove it), it’s still no excuse to tolerate a system that essentially keeps about 30 of those 100 defendants locked up for lack of money to pay the secured financial condition.
For 80 or 90 years we have amassed a great deal of research showing fundamental flaws with the commercial surety system. Now, we’re seeing that the very premise behind the system and any system based on secured bonds – that paying some portion of the money up-front motivates defendants to come to court and stay out of trouble – doesn’t fly.
Here’s the link to the study: http://www.pretrial.org/download/research/Unsecured%20Bonds,%20The%20As%20Effective%20and%20Most%20Efficient%20Pretrial%20Release%20Option%20-%20Jones%202013.pdf
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