We've finished up adding revisions to our earlier documents explaining the changes to Colorado's bail law. You can find the revised documents here: http://www.clebp.org/newsandevents.html.
We wrote the first paper after passage of H.B. 1236 in 2013, and we made the revisions to explain the changes passed this year through S.B. 212. The explanations for the revisions are scattered throughout the paper (in bold and a different font, though, so they're pretty easy to spot) and they are also lumped together at the end of the paper.
I suppose it speaks for itself, so I won't add anything here.
Sunday, June 22, 2014
Friday, June 13, 2014
Bail Terms and Phrases
I've been talking about getting Americans all together with their use of terms and phrases dealing with bail for quite some time. Here are a couple of examples of improper usage of bail terms -- one pretty easy, and one a bit more complicated.
First the easy one, which was recently published by a commercial bail bonding newsletter in an article titled, "Nine Questions Answered About Pretrial Release." Pretrial release? Excellent, we must be talking about the release, pretrial, of a criminal defendant, right? Nope. They're actually talking about pretrial services programs, agencies, or organizations, which are entities that are typically government run, but sometimes are private, and which provide services to courts including: (1) information gathering, including pretrial risk assessment of defendants; (2) recommendations to help judges with the release and detention decision; and (3) supervision for court appearance and public safety concerns. As far as I know, it's only the commercial bail industry and those who blindly repeat their claims that use the term "pretrial release" (or sometimes, just "pretrial") to mean these particular programs. Most state laws, and most people operating under those laws, are pretty good about figuring out the nuances between proper and improper terms and phrases, and therefore don't make this very basic mistake.
Whether done purposefully or not, equating pretrial release with these entities causes confusion and can actually hurt the bondsmen on the street, who are likely hoping that their industry newsletter will instead be giving them information that helps. I can't tell you how many events I've attended where some well-meaning bondsman says, "we're against pretrial release," or "we don't like 'pretrial,'" and the whole room looks at him like he's crazy. Judges and attorneys, for example, consider pretrial release to be exactly that -- the release pretrial of a criminal defendant with conditions designed to provide reasonable assurance of public safety and court appearance. One of those conditions might be pretrial supervision by a pretrial services entity, or one could be money, which is perhaps where the bondsmen come in. So here is a softball for the bail industry: at least start using this particular term correctly so that your constituency can be clear about what they are talking about. After all, I'm pretty sure that those constituents support the pretrial release of defendants, also known universally and historically as bail.
Now the harder one, which involves the more frequent misunderstanding between "bail" and money. In a recent article in New Hampshire, the headline read, "Bail for former councilor reverted to PR." To know what this means, we have to know what New Hampshire means by both "bail" and "PR."
Looking at the New Hampshire bail statute, you'll see a pretty decent section dealing with methods of release and detention, which include release on personal recognizance, release on a condition or conditions, and temporary and complete detention. So far, so good -- it looks a bit like the federal statute, which is a pretty decent statute in terms of defining things correctly and avoiding the especially confusing term of "bail." But then the New Hampshire statute lists various conditions, which include "furnishing bail" for the defendant's appearance. It also speaks of the "amount of bail," which is a pretty clear indication that New Hampshire equates bail with money. On one local attorney's website, things even get a bit more complex, as that attorney says there are three basic types of bail in New Hampshire, a PR amount, a cash amount, and a surety amount. To him, bail is still money, even though he would probably disagree with the usage in the headline.
The problem here, and in many states, is that bail is not money. Instead, when you research the history of bail as well as the law intertwined throughout that history, bail is best defined as a process of release, and money is merely a condition of that release -- a financial condition, or limitation on pretrial freedom, that must be assessed for lawfulness and effectiveness in any particular case. I have recently written a pretty long document explaining this, and so I won't go into detail. But I will say two things about bail defined as money. First, I have found that when states go so far as to actually define bail as money, they are not only at odds with the history of bail and the fundamental legal principles underlying the bail process, they are also at odds with most of the other states, the United States Supreme Court, the understanding behind the national best practice standards on pretrial release and detention, and virtually all of the best and most recent definitions of bail. Second, and more importantly, I have found that when a statute defines bail as money, it is a symptom of a legal scheme that is overflowing with money in most of its other provisions.
Colorado had such a scheme. Bail was defined as money, and therefore it included a number of sections that took money for granted, instead of treating it like any other condition of release. Our statute was flawed, and our court opinions, based on that statute, were also flawed. After a year of studying bail, however, our state crime commission recommended changes to the statute, which included changing the very definition of "bail" so that it was not equated with money. The best statutes in America simply articulate things in terms of release and detention. Indeed, these days, "typing" a bail bond based on how it uses a single condition of release -- money -- such as by calling it a PR bond, a surety bond, or a cash bond, is antiquated. It would be like calling it a "drug testing bond," or a "GPS" bond, if you understand what I'm getting at. Money used to be the only condition of release -- from about 500 AD to about 1960 -- but that's not true any longer.
So maybe the headline is somewhat understood by people in New Hampshire, but it's still really confusing for a majority of people in America, who would, instead, correctly say, "Even if someone is on a personal recognizance bond, he or she is still being released through the bail process." Based on the most recent pretrial research on risk, I have a feeling that the rest of the New Hampshire statute may need other amendments. My only comment today is that when looking into those amendments, the people of New Hampshire might want to research the proper use of certain terms and phrases.
Pretrial justice is like reading a book. It helps if we are all on the same page. And that includes the words we use.
First the easy one, which was recently published by a commercial bail bonding newsletter in an article titled, "Nine Questions Answered About Pretrial Release." Pretrial release? Excellent, we must be talking about the release, pretrial, of a criminal defendant, right? Nope. They're actually talking about pretrial services programs, agencies, or organizations, which are entities that are typically government run, but sometimes are private, and which provide services to courts including: (1) information gathering, including pretrial risk assessment of defendants; (2) recommendations to help judges with the release and detention decision; and (3) supervision for court appearance and public safety concerns. As far as I know, it's only the commercial bail industry and those who blindly repeat their claims that use the term "pretrial release" (or sometimes, just "pretrial") to mean these particular programs. Most state laws, and most people operating under those laws, are pretty good about figuring out the nuances between proper and improper terms and phrases, and therefore don't make this very basic mistake.
Whether done purposefully or not, equating pretrial release with these entities causes confusion and can actually hurt the bondsmen on the street, who are likely hoping that their industry newsletter will instead be giving them information that helps. I can't tell you how many events I've attended where some well-meaning bondsman says, "we're against pretrial release," or "we don't like 'pretrial,'" and the whole room looks at him like he's crazy. Judges and attorneys, for example, consider pretrial release to be exactly that -- the release pretrial of a criminal defendant with conditions designed to provide reasonable assurance of public safety and court appearance. One of those conditions might be pretrial supervision by a pretrial services entity, or one could be money, which is perhaps where the bondsmen come in. So here is a softball for the bail industry: at least start using this particular term correctly so that your constituency can be clear about what they are talking about. After all, I'm pretty sure that those constituents support the pretrial release of defendants, also known universally and historically as bail.
Now the harder one, which involves the more frequent misunderstanding between "bail" and money. In a recent article in New Hampshire, the headline read, "Bail for former councilor reverted to PR." To know what this means, we have to know what New Hampshire means by both "bail" and "PR."
Looking at the New Hampshire bail statute, you'll see a pretty decent section dealing with methods of release and detention, which include release on personal recognizance, release on a condition or conditions, and temporary and complete detention. So far, so good -- it looks a bit like the federal statute, which is a pretty decent statute in terms of defining things correctly and avoiding the especially confusing term of "bail." But then the New Hampshire statute lists various conditions, which include "furnishing bail" for the defendant's appearance. It also speaks of the "amount of bail," which is a pretty clear indication that New Hampshire equates bail with money. On one local attorney's website, things even get a bit more complex, as that attorney says there are three basic types of bail in New Hampshire, a PR amount, a cash amount, and a surety amount. To him, bail is still money, even though he would probably disagree with the usage in the headline.
The problem here, and in many states, is that bail is not money. Instead, when you research the history of bail as well as the law intertwined throughout that history, bail is best defined as a process of release, and money is merely a condition of that release -- a financial condition, or limitation on pretrial freedom, that must be assessed for lawfulness and effectiveness in any particular case. I have recently written a pretty long document explaining this, and so I won't go into detail. But I will say two things about bail defined as money. First, I have found that when states go so far as to actually define bail as money, they are not only at odds with the history of bail and the fundamental legal principles underlying the bail process, they are also at odds with most of the other states, the United States Supreme Court, the understanding behind the national best practice standards on pretrial release and detention, and virtually all of the best and most recent definitions of bail. Second, and more importantly, I have found that when a statute defines bail as money, it is a symptom of a legal scheme that is overflowing with money in most of its other provisions.
Colorado had such a scheme. Bail was defined as money, and therefore it included a number of sections that took money for granted, instead of treating it like any other condition of release. Our statute was flawed, and our court opinions, based on that statute, were also flawed. After a year of studying bail, however, our state crime commission recommended changes to the statute, which included changing the very definition of "bail" so that it was not equated with money. The best statutes in America simply articulate things in terms of release and detention. Indeed, these days, "typing" a bail bond based on how it uses a single condition of release -- money -- such as by calling it a PR bond, a surety bond, or a cash bond, is antiquated. It would be like calling it a "drug testing bond," or a "GPS" bond, if you understand what I'm getting at. Money used to be the only condition of release -- from about 500 AD to about 1960 -- but that's not true any longer.
So maybe the headline is somewhat understood by people in New Hampshire, but it's still really confusing for a majority of people in America, who would, instead, correctly say, "Even if someone is on a personal recognizance bond, he or she is still being released through the bail process." Based on the most recent pretrial research on risk, I have a feeling that the rest of the New Hampshire statute may need other amendments. My only comment today is that when looking into those amendments, the people of New Hampshire might want to research the proper use of certain terms and phrases.
Pretrial justice is like reading a book. It helps if we are all on the same page. And that includes the words we use.
Monday, June 2, 2014
Oops, we didn't mean to actually release him . . .
Here is yet another case that's a symptom of our dysfunctional bail system:
http://www.yorkdispatch.com/breaking/ci_25865269/york-businessman-accused-murder-hire-plot-free-10m#
The news article describes a judge doing what judges in America often do -- order the release of a person on bail, but then set a financial condition of release that most everyone figures will keep that person in jail. In this case, the judge in York County, Pennsylvania, set defendant Gregory Allen Hess's financial condition at $10 million. Yes, $10 million. And, frankly, everything was apparently going quite well until a for-profit bail bondsmen came and posted the bond. Oops.
This case reminds me of another case in Missouri not too long ago, in which the Saudi Arabian government posted a defendant's $2 million financial condition of release. In that case, the judge actually admitted that he didn't mean for the defendant to get out. In fact, the judge said, he meant to detain the defendant, even if that detention violated the Missouri Constitution.
So in York County, people are trying to figure out ways to reverse the release process. Right now they're looking to see if the bondsman has enough assets to cover the bond. All of that, however, is just a sideshow to the main event, which is that people just didn't want Defendant Hess to get out of jail. This isn't unusual. Across America, judges are setting "release" conditions that are designed to detain -- typically when they think that the defendant is a big risk to public safety.
It's the same thing that was happening around the the middle of the twentieth century, and because it was a bad way to administer detention (or "no bail," as I often call it), we figured out how to change our laws (both statutes and constitutions) to allow judges to detain people in fair and transparent ways without going through the charade of setting unattainable release conditions.
So why does it still happen? Well, it turns out that a lot of states simply didn't go far enough in making the kinds of changes required to do pretrial detention properly, mostly by not fully implementing the kind of detention scheme approved by the United States Supreme Court and by not drastically reducing the use of money at bail. On top of that, virtually all of the state release and detention schemes that we currently have are still based primarily on charge -- allowing states to detain defendants only when they are charged with certain enumerated crimes -- as opposed to risk, which would allow judges to assess the pretrial risk of any defendant, no matter what the charge, and potentially hold him or her without bail if necessary. All of this is especially important when you realize that money bail has nothing to do with public safety. Money can't keep you safe, and in virtually every state, money can't even be forfeited for breaches in public safety. Typically, you can only lose it if you fail to show up for court. Using money for public safety really only works when the defendant can't pay it. The problem is that using money to detain is likely unlawful.
And sometimes, you know, an extremely high risk defendant actually pays it and gets out anyway. In Washington State, a judge set a $190,000 financial condition for Maurice Clemmons, who was assessed to be dangerous, a high risk to re-offend, and hallucinating. He paid it through a bail bondsman and within a week shot and killed four police officers. Just about a year ago, a defendant in Colorado was released on a $75,000 commercial surety bond even though a pretrial services assessment said that he was too risky to be adequately supervised in the community. While out, he shot a State Trooper during a roadside assist. In that case, the Trooper lived, the defendant died, and the bondsman kept his fee and didn't have to pay any of the $75,000.
The history of bail and the law intertwined with that history tells us several things, but one of the biggest is this: both "bail" (release) and "no bail" (detention) are lawful if we do them correctly. When done correctly (and in the proper ratio), bailable defendants (or those whom we feel should be bailable) are released and unbailable defendants (or those whom we feel should be unbailable) are detained. When we don't do them correctly, however, history demands that we remedy the situation through bail reform measures. Indeed, starting in the middle ages in England, whenever anything has interfered with the proper functioning of this "bail/no bail" dichotomy, we have seen periods of reform. It's the reason we have Habeas Corpus, the reason we have the Excessive Bail Clause and the English reforms of 1554 (what?), and the reason we've had two previous generations of bail reform in America.
In our country today, we are doing both "bail" and "no bail" incorrectly. We know this because there are bailable defendants who are not being released and there are unbailable defendants, or in Defendant Hess's case, people that we think should be unbailable, who are not being detained. The good news is that we know how to fix this. Unlike any other time in history, we have the best understanding of how to create lawful release and detention schemes, and we're seeing more and more states using this knowledge to restructure bail.
The York County story presents merely a symptom of dysfunction and an example of the kind of interference with "bail" and "no bail" that historically demands correction. There's probably a joke here about the Borg in Star Trek and the futility of resistance in the face of being assimilated, but I am absolutely not joking when I say that this particular story reminds me of only one thing: bail reform is inevitable.
Tuesday, May 27, 2014
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.
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.
Thursday, May 15, 2014
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.
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.
Monday, April 21, 2014
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.
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.
Monday, April 7, 2014
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.
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.
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