"Model" Bail Laws

After far too long, I’m finally posting the paper I’ve been working on dealing with pretrial release and detention. You can find it here.

In this generation of bail reform, jurisdictions are changing – both voluntarily and by force – their release and detention laws, policies, and practices. This paper answers the question, “If we change, to what do we change?”  Knowing this answer might help places that are still unsure of what a lawful, purposeful, in-or-out pretrial release and detention process should look like, and the steps required to create and to legally justify it.  

To me, the hard part about “model” bail laws isn’t necessarily what we should do to make sure we get good outcomes after a person is determined to be releasable. The hard part is re-drawing that initial line based on whom we want to release and whom we want to detain, which, in most cases means re-articulating both a narrow charge-based detention eligibility net and more refined further limiting process following fundamental American notions of fairness and liberty, all while infusing this generation of risk research into the mix. I’ve noticed a lot of people aiming at this target lately, and so I hope this helps with the overall conversation.

The whole issue is a bit more complicated than simply replacing charge with risk. In the end, you’ll see that the two have to work together. The paper is long because of that complexity, but you can skip to the end, where I lay out various templates of a release/detain dichotomy for a model based on the history, the law, the research, and the national standards. If you then want to know my justification for that model, you can read the other 190 pages. Jurisdictions certainly don’t have to use my model, but my hope is that in the future, jurisdictions will nonetheless see my justification, and then provide the same or similar justification for any changes to their laws.

Many people are asking where actuarial pretrial risk assessment instruments fit into all of this. The answer is that they are fabulous at helping with 99% of everything we are trying to achieve with pretrial release and detention. Nevertheless, my analysis concludes that we cannot use them solely to determine detention or detention eligibility. That seems pretty obvious when you say it out loud, but laying down a proper justification made the issue a bit complicated.

I’m sorry for the length and the fact that there is no proper “executive summary,” but, frankly, this paper isn’t really for mass consumption. Nevertheless, people who are at that point where they are putting pen to paper to craft the words of their constitutions, statutes, and court rules, will definitely want to read it. There are other discussions, as well, that might help those of you trying to think through the whole charge versus risk question. And, of course, if you’re just really obsessed with bail and no bail – like I am – then you can pour through it and call me with any questions.

I have a hunch about bail reform in America. My hunch is that the first two generations of bail reform didn’t work for three reasons: (1) judges weren’t involved; (2) we worked mostly in the federal system, and didn’t take the time to walk states through the same process; and (3) we never really had all the answers. In this generation, judges are involved, and we are working with the states. And with this paper, I personally believe that we now have some of the final answers to give to states trying to create a more purposeful and possibly moneyless system. 

And you thought all I did was complain about the insurance companies! 

Modifications Sought for NJ Bail Reform?

So the insurance companies are now displaying a letter from the NJ Attorney General saying that he wants modifications in bail for persons arrested on gun and eluding charges. 

The industry posts the story, and then adds commentary saying "The wheels are starting to come off of NJ bail reform," and "The failures of NJ bail reform are well documented."

That's some pretty hyperbolic commentary, given that the NJ AG didn't ask for the one thing the insurance companies want in all cases -- the re-introduction of money.

Those insurance dudes don't get it. NJ has created a super wide detention eligibility net, and could quite easily detain persons showing any kind of heightened risk to public safety. Adding money to their bonds -- the only solution posed by the insurance companies -- won't do a thing for danger, and everyone in NJ knows that. Heck, even the insurance dudes know that. That's why most of their posts are mixed messages, with statements warning about all those dangerous defendants while simultaneously talking about the presumption of innocence. Right now, you have the head of ABC trying to start a national bail fund for poor people while the head of PBUS continues to say, "people aren't in jail because they're poor."

Nobody except the insurance companies is saying to add money back into the bail process to make people safe. I've spent the last 10 years showing how money doesn't make anyone safe, and the bail industry has spent the last 10 years making sure they don't have any responsibility for public safety. Some of our worst failures over the years have been when super high risk people bail out of jail on a surety bond and commit heinous crimes. Just a few weeks ago, a guy in Colorado bailed out on a surety bond and was promptly arrested for a double homicide. Nobody assessed him, nobody supervised him, and he didn't even have any other conditions besides the money, which nobody even forfeited. 

If I thought that the people who run these systems paid any attention to the insurance companies' various Facebook accounts, I might be worried that they'd be duped in some way. But everybody I know in criminal justice knows the score. The only reason these stories -- and their crazy commentary -- get posted is to convince bail agents that somehow they're winning the war so that they'll keep sending money in to continue the fight. 

So go ahead. Keep sending it in. You're paying for the salaries of people who are systematically killing your businesses.

Bail Insurance Companies Spread False and Misleading Letter

The website “U.S. Bail Reform News,” a pretty weak attempt by the insurance companies to provide slanted information on bail reform, recently put up a post about a Colorado district attorney warning Maryland about bail reform. What they left out tells you something about whether you can ever rely on that site for anything but bogus information.

The insurance companies’ ties to that particular DA’s office go back a long time. I was once in the room when five or six DA’s from that office, along with some bail insurance dudes, were trying to convince our county commissioners to de-fund our pretrial services unit. So back then, as the story goes, the DA in charge got pretty hammered by the rest of the system. He liked bail the way it was – money, money, all the time – and the rest of the system voted him down and made some changes. He was so upset – and I mean, like, upset the way a six-year-old gets – that he never forgot it. Ever since then, that particular DA’s office has done everything it can to try to “go back” to the good old days with money, bail schedules, and DA’s deciding on the amounts, and to “get back” at the people who made the changes. If I listed all the dumb things that office did when it came to getting back at everybody over the bail project, you’d want to barf. Or send them to Washington.

And all that childish pride, that incredibly irrational opposition against everything that is bail reform (including opposition to many things that would help with public safety – the DA actually once said he “didn’t believe in research” or "didn't care about the research," which was something monumentally dumb for a lawyer to say) was just the thing to get the insurance companies excited. So when Maryland came along, those companies got the current DA to write a letter with a current county commissioner and the current sheriff, saying that bail reform failed. I won’t bore you with the details, but there were only a couple things wrong with the letter: (1) it was factually incorrect; and (2) the people who signed it weren’t even around and in any position to comment on it one way or another. The two are related, I suppose. Since they weren’t around when we did stuff, they didn’t know that what they said about it was wrong. The commissioner actually testified before the Maryland legislature about a “10 County Pilot Project” in Colorado. Well, guess what? There was no such thing. It simply never happened. That’s either dumb or . . . no, it’s probably just dumb.

Anyway, a district court judge in that same jurisdiction drafted a declaration about the letter saying: (1) they were wrong; and (2) they weren’t even there. We gave that declaration to Maryland and to the people in Texas, and we continue to give it out to anyone who trots out the dumb letter.

As a side note, it may interest you to know that the bail insurance companies once requested the County to submit to them some sort of document about the bail project. You'll never see that response, though, because the County itself said the bail project was a success. Obviously, that wasn't the answer they wanted. So they went with the letter.  

This whole thing follows a trend I have written about before. The insurance companies will pay anyone to write or do anything to help them, and they really don’t care if what comes out is even true. Then they tell all the bail agents around the country to look at it like it’s some sort of victory, but they never mention the fallout from providing false information to various officials and what happens whenever I correct the record.

All this fighting by the insurance companies – all this desperate use of false information – is why judges are going to simply stop using commercial surety bonds. That’s the fallout. It won’t matter whether you leave money in or take it out. After all, look at New Jersey. All that fighting led to money being left in the mix, but judges simply aren’t using it. This is what’s going to happen around America. And it’s due to the insurance companies’ inability to tell the truth about even stupid things.

“We have a letter!”    

Big deal. We have the truth. 

Bail Insurance "Accountability"

Here's an example of bail insurance "accountability" in El Paso County, Colorado.

Defendant: Gustavo Marquez

Case #1 -- 17CR1150, felony assault, kidnapping, child abuse. No risk assessment, no supervision, released on $5,000 surety bond with no further conditions.

Case #2 -- 17CR1586, while on release for case # 1, arrested for double homicide (victims = 15-year-old-boy and 16-year-old girl). Now being held without bail.

The kicker? Nobody forfeited the $5000.

My No Spin Zone

I have no idea why bail insurance people (including the insurance infested PBUS) can't report anything without considerable spin. Here's the truth about a couple of things they've reported on lately.

First, the 11th Circuit remand was not a "huge win" or a "major blow" for anyone. It got sent back kind of on a technicality (an important technicality, sure, but still a technicality). I used to write opinions for a circuit court of appeals, and this is not the kind of opinion that means much of anything. The district court judge already thought Walker was likely to win on the merits, and if nothing changes, he may well find the very same thing again. Another injunction, another appeal. It's a royal pain in the rear to have to do stuff over again, if it comes to that, but it's not a huge win for anyone.

The absolute truth (which people on "my side" don't even like to hear) is that preliminary injunctions are really rare, and super hard to get. I never expected one, especially on a tricky topic like bail. In fact, over time, I think we'll see both wins and losses in the district courts. I predict, however, that the "no money bail" push will ultimately be embraced by the federal courts. It's just going to take a while. If you do see a bunch of preliminary injunctions, though, that's really bad news for money bail. It's why the insurance folks are spending so much money down in Texas.

Second, somebody apparently watched the Pi-Con pretrial conference, made fun of it, and said it meant that everything was going to swing back the insurance company's way. I was there, and what I saw actually gave me quite a shock. We were going to watch a debate about money bail from a more conservative guy (Mark Levin from Right on Crime) versus a more liberal guy (Rep. Ted Lieu), and I expected disagreement. But there wasn't any. Both predicted the end of money bail because it made no sense whether you were conservative or liberal. Mark mentioned possibly using defendant collateral, but not through families or through a commercial surety system.

The absolute truth is that the disagreement between conservatives and liberals will come not from the elimination of money, but from where to draw the line between release and detention in a moneyless world. Nobody has gotten that far yet, but they soon will.

I also talked to more than a few judges, and they said essentially what I heard at a Conference of Chief Justice's conference not long ago. The judges said, "We just aren't going to use commercial sureties anymore." You can fight all you want, but if you leave money in the system and judges simply don't use it, it's all over. You can try to force judges to set a surety bond -- I've seen many attempts of that in the states, some even successful. But I've never seen anyone force a particular amount, and that's where all the forcing fails.

There's still time for bail agents to find a place in this new world of pretrial release and detention, but you won't get there listening to the insurance companies.

Bail Agents Leading Bail Reform?

How does the one group of people who's neck deep in bail (i.e., the bail agents) end up completely outside of bail reform? That’s the question I’ve been asking myself lately. 

The answer isn’t all that complicated. It’s because the insurance companies don’t know anything about you, and they didn’t consult you when they decided on a strategy to fight everything in bail reform.

 I’m not kidding when I say they don’t know you. The other day the head of PBUS said you all had been around for 200 years. That’s wrong, and it’s proof that they don’t know your history. Commercial sureties have been around for 120 years, but that’s not a bad thing. The fact is, when commercial bail bonding came about in America’s history, bail bondsmen were the white knights – riding in to fix a system that nobody else knew how to fix. Your predecessors helped America figure out how to get people out of jail who shouldn’t have been in jail to begin with. It was a huge thing, and something you all should be proud of. 

 The point, though, is that the insurance companies don’t even know any of this, and yet they try to speak on your behalf. Now they simultaneously say states should maintain a right to bail, but that everyone who is arrested is a violent criminal and should be locked up. It’s the most contradictory thing I think I’ve ever heard. The other day someone showed me the hashtag, “savebailkeepeminjail.” Only an insurance goofball could dream that up.    

Then there’s that “fight everything” strategy. They probably don’t know this either, but that strategy actually got going in 1965, when Attorney General Kennedy held the first National Conference on Bail and Criminal Justice. There were two people representing the industry at that Conference, and guess what? Yep, they were both insurance guys. The first guy basically said, good luck trying to change anything. He gave no help whatsoever in trying to figure out the kinds of things the participants were questioning. Instead, he just kept saying that the system was great the way it was. In the end, he said: “We do say, however, that the bail bond business is something that will go on forever. It cannot be abolished.” So there.

 The second guy actually said a few things that current bail insurance dudes could learn from. First he talked about the presumption of innocence (you may recall that today’s insurance people used to argue that it didn’t exist at bail). Then he talked about surety bonds being a more equitable than England’s system, which tended to refuse bail altogether in much higher numbers. But in the end, he basically said that trying to change anything about his particular bail insurance industry was socialism, and that it would lead to the socialization of the entire insurance industry and ultimately all industry. Now, I wouldn’t call that figuring out solutions, would you? 

You bail agents could be the people who help everyone figure out what to do next, and yet you have chosen to give your power to insurance people, who don’t understand you, your history, or your potential place in the future of American pretrial release and detention.   

There's no place in that future for insurance companies. They know that, which is why they fight everything. Once you know it, you’ll cut them loose and maybe help everyone with a solution. Think about it – bail agents leading bail reform. It actually makes sense. 

PBUS Head: “We don’t want to kill our clients . . .”

“We don’t want to kill our clients . . . it sort of kills [our] repeat business.” Yep, that’s what the PBUS head said in an interview the other day.

Okay, I know that was probably meant to be funny, but I listened to the rest of the interview and I heard a lot of crazy-ass stuff – you know, stuff about George Soros being behind some secret cabal that means the end to money bail in America.

Look, I know people like to have an enemy. And I know it’s intriguing to talk about some dark, nefarious enemy who nobody even knows about, but who is really some grand puppeteer behind the scenes screwing things up for everyone. But in this case, it just isn’t so. I’m right here. George Soros is somewhere out there. I do bail reform everywhere. I’m not sure what he does anywhere. We haven’t talked, and I haven’t even seen one word mentioned about him except from groups like PBUS.

Bail agents, if this is the strategy that you told PBUS and ABC to pursue, then God bless you. But even if you did, I hope you realize how nuts it all sounds out loud.