New Jersey Bondsmen Abuses

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

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

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

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

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

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

Mother Jones Bail Story

If you go to the Mother Jones website -- at http://www.motherjones.com/toc/2014/05 -- and sign up for free, you can read the new article by Shane Bauer with the semi-spoiler title of "Lobbyists, Guns, and Money: Inside the Shadowy and Very Well Connected Bail Bonds Industry."

I wrote a blog this morning with my own take on the subject, but when I re-read it, it seemed quite negative, and I'm trying to be more positive about everything -- even bail insurance lobbyists. Shoot, I did it again. Oh well, I've deleted that blog and promise to do better in the future.

You can read Shane's article and come to your own conclusions.

Multi-Million Dollar Financial Conditions of Bail

I don't like writing about what I call "aberrational" cases -- those unique cases that make the news but that don't necessarily tell you what is really going on with bail in America. I would much rather talk about a case in which a judge set a $100 cash-only bond that led to the unnecessary pretrial detention of yet another defendant without money. That sort of thing happens all the time, but you just don't read about those cases very often in the news. Instead, the news reports on the aberrations, and when you watch the news for bail issues for a bail blog, you end up reading (and sometimes writing) about aberrational bail cases. Typically, they involve financial conditions in the millions of dollars. I saw two such cases the other day, and each raises similar issues.

The first case involved a 21-year-old San Francisco Giants fan, who set off an M-80 firework at a baseball game against the Dodgers. Nobody was seriously hurt, and the press reported that the defendant had never been in trouble before, but the judge set the financial condition at $2.4 million. Later, when the judge reduced the amount to a "mere" $100,000, the defendant's attorney said he believed the initial amount was simply an overreaction to other violent issues linked to Giants games. Now, I wasn't there, and so maybe the judge who initially set the financial condition had grave concerns about the risk to public safety and flight that were later found to be less concerning. But the paper didn't mention any of those things, and if the attorney is correct, then the financial condition of bail in this case was set for an improper purpose. There are only two constitutionally valid purposes for limiting pretrial freedom -- public safety and court appearance -- and judges are expected to base their decisions about setting conditions with only these two purposes in mind. Conditions set to placate public opinion, to punish, or as a reaction or an "overreaction" to other incidents are unlawful. Don't get me wrong -- the $100,000 reduction may be equally unlawful if set for an improper purpose. It's up to the attorneys in the room to force the judge to make a record as to why he or she is setting a particular condition. In bail, motive matters, and an improper motive can actually be the difference between a constitutional and and unconstitutional bail setting.

The second case is one you have probably heard about. Over a period of years, a Utah mother apparently killed 6 babies shortly after they were born and hid the bodies in her garage. The financial condition of bail in her case? Six million dollars, or, as the news reported, "one million for each baby." Of course it's a horrible and tragic case, but what makes it puzzling, bail-wise, is that the Utah bail scheme appears to allow judges to deny bail altogether for any person charged with capital felony or "a felony when the court finds there is substantial evidence to support the charge and the court finds by clear and convincing evidence that the person would constitute a substantial danger to any other person or to the community, or is likely to flee the jurisdiction of the court, if released on bail." If the court makes this finding, then it doesn't need to go through the somewhat disingenuous dance of ordering the defendant's release but setting the conditions of release so that release is unattainable. Again, I'm not there, but I read that the defendant actually admitted to killing the babies, and so if the judge just had this hearing, her or she could simply deny bail altogether. Following the theme of making sure one has a proper purpose for limiting pretrial freedom, setting a financial condition of bail simply to send a message to the public that the crime is serious would be unlawful. Moreover, setting a financial condition of release with a purpose to detain, especially when the state a lawful process for detaining defendants "without bail," as Utah does, should also be deemed an improper purpose and thus unlawful. There are a number of states in America that have enacted lawful procedures that can be used to deny bail (release) in any particular case. Many judges do not use those provisions because it is simply more expedient to detain someone by uttering some gigantic amount of money. Bypassing those provisions, though, means giving short-shrift to the rights that are being protected by the lawfully enacted processes.

All of this goes to states correctly setting up their "bail" and "no bail" dichotomies so that the right persons will be released or detained pretrial. Multi-million dollar conditions of release are typically symptoms of problems with the dichotomies. It's not necessarily an easy thing to do, but once states figure out how to correctly set up both "bail" and "no bail," I predict far fewer million-dollar conditions of release.            

Beware of Bail Lobbyists "Teaching" Our Students

I just read an article titled, "Bail bondsmen are a thing of the past in Massachusetts." According to the article, the phase-out started with bondsmen corruption, which led to the creation of alternatives to bondsmen, and finally to judges simply choosing not to use them. But it quickly reminded me of a recent You Tube video of a bail insurance lobbyist trying to convince college students why bondsmen are "indispensable" to the criminal justice system. I know lobbyists are paid to spin, but given the disconnect between what this lobbyist said and reality as epitomized in Massachusetts, it's no wonder that people are recognizing that the world might just be a better place without the commercial surety industry.

The lobbyist started by referencing a chapter in an American Bar Association booklet about sureties in which he and another author make the case for for-profit bail bondsmen. In fact, the part in that chapter talking about their worth is relatively new, and was created only recently to muddle the water about what the ABA really thinks about commercial sureties. In the ABA's Criminal Justice Standards on Pretrial Release, the document that was created by criminal justice system decision makers (i.e., judges, prosecutors, defense attorneys, and pretrial experts) and not bail insurance lobbyists, Standard 10-1.4 says that "compensated sureties should be abolished." There are a lot of reasons for this, and any good college student should probably look them up before taking the word of the commercial bondsmen's hired gun.

By tracing bail back to Egypt, the lobbyist implies that his industry has been around for eons. In fact, the commercial surety industry has only been a part of the American system of bail since about 1900. Before that, England and America relied primarily on unsecured bonds administered through a personal surety system, in which profit and indemnification were not allowed. Shortly after the introduction of commercial sureties, we realized that they would pick and choose who to release. That, and their tendency to engage in corrupt activities, led people to actively criticize commercial bail bondsmen as early as the 1920s and eliminating them as early as the 1960s.

Once again, the lobbyist uses U.S. Department of Justice Bureau of Justice Statistics (BJS) data to say that commercial sureties are a better form of release than all other forms. You just can't do that. The BJS itself said that you can't do that, and issued a "data advisory" warning people not to make evaluative statements based on their data because doing so would be incredibly misleading. I know that the bail lobbyists are aware of the advisory because when it came out they complained loudly. Since then, they have simply ignored the warning. You just can't trust the bail insurance lobbyists when it comes to research. There is good research out there, but you won't hear about it from the industry. Someday, if I have to, I'll detail the disturbingly cozy relationship these bail lobbyists also have with some so-called "neutral" researchers. It's fascinating stuff.

Once again, the lobbyist says that a commercial surety release is superior to all others because defendants think that, "they [bail bondsmen] are coming after me." That's not true either. If you don't believe me, ask any cop or deputy sheriff. We did here in Colorado, and for three months we tracked arrests made by 15 or so municipal agencies as well as walk-ins to the court. A whopping one-half of one percent were brought in by bail bondsmen or a bounty hunter. In another study, researchers compared defendants who failed to appear for court on secured bonds with those released on unsecured bonds. After one year, the numbers were equal, indicating that nobody was going after defendants on surety bonds more than anybody else. Yes, there are bounty hunters, and yes, some do make a living at it. But their prevalence has been grossly overstated.

The lobbyist says that people behind the current generation of bail reform are only concerned with helping defendants, which is also not altogether true. The current pretrial justice movement is focused on both "bail," or release, and "no bail," or detention. It is concerned with setting up legal and evidence-based practices so as to maximize the release of bailable defendants (while protecting the public and providing assurance of court appearance) and the detention of nonbailable defendants. Overall, it is concerned with public safety, court appearance, and appropriate placement of pretrial defendants. It's just that money gets in the way of all of this, and so we are moving away from it. If you move away from using money, you are bound to have bail insurance lobbyists come up with their own distorted reasons to explain what we are doing.

In a related statement, the lobbyist says that there's no such thing as a low risk defendant who can't get out of jail for lack of money to pay a bail bondsmen. That statement even defies logic. The Department of Justice estimates that nearly 90% of defendants held for the duration of their pretrial phase cannot post the monetary condition s of their bonds. Here in Colorado, we once did a study where we weeded out all the defendants who might have holds, etc., and other things getting in the way of release, and then we walked cell to cell to ask them why they weren't out. The reason was money. This was true in about 80% of the cases, and a bunch of those bonds were for less than $100. Now, this particular lobbyist qualifies things by saying that if a person can't get out, he must be a high risk and thus shouldn't get out. The big problem with this statement, of course, is that bondsmen don't base their decisions on risk. They base them on the defendant's ability to pay the fee and collateralize the bond.  They call a defendant who can't pay "high risk." I call him a defendant who can't pay.

The lobbyist then says that he has tried to "extend an olive branch" to work together with the various people behind the current movement of pretrial reform. Really? Compare that to the statement I read in the agenda to a recent national bail bondsmen conference, which said, "Next month's conference will give you MORE help in fighting pretrial in your state." In fact, back about three years ago, this very bail insurance lobbyist showed up at a County Commissioner Meeting in my county to discuss de-funding our pretrial services unit. I didn't detect any spirit of cooperation on that day.

Finally, the lobbyist cites to a study by the Texas Public Policy Foundation. All I can say is, look this group up through Source Watch to see what they are really up to. They are connected to big corporations, and ALEC, which is closely tied to the bail insurance industry. You know, when I was in college I was extremely suspicious of people older than me -- for good reason, it turns out -- but I held out hope that when our generation got older we wouldn't intentionally mislead anyone who came after us. Unfortunately, that didn't happen. Don't trust anyone, even your professors. Question everything. Look everything up.

The bail insurance lobbyist was the first speaker in what is supposed to be a "criminology lecture series." I would hope that in the future they will get some actual criminal justice types to speak to students. Having a bail lobbyist speak on criminal justice is not much better than a lecture from the guy who prepares and sells sandwiches to the jail. Students being students, I am certain that they were smart enough to see the talk for what it was -- a sales job. At the very least, the students likely now understand a bit how an entire state like Massachusetts can easily decide that this industry is far from indispensable.


     

New Jersey -- The Future of Bail in America

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.

Bail Insurance Companies, Risk Assessment, and Leeches

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

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

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

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

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

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

Bail 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.