Tenth Circuit Slams Bail Industry

I just read the 10th Circuit Court of Appeals' (where I used to work, above) opinion in Collins v. Daniels, in which the bail industry, some NM legislators, and one former arrestee, whom they claimed could have been released more quickly on a money bond, sued a bunch of judges in New Mexico. The overall thrust of the suit was based on a belief that the New Mexico bail rules and use of the Arnold pretrial assessment instrument violated the constitution. In short, the appeals court affirmed the district court's ruling against the bail industry mostly on jurisdictional grounds (lack of standing, mootness, etc.,) and immunity, but the case reminds me of a couple of big points.

The first point is that the case highlights the reason why this suit happened in the first place. Remember that bail reform in New Mexico started with a single opinion from the state supreme court writing about how judges were routinely violating the current law as written through the use of money bonds. This caused a stir, and led to both a constitutional change and new court rules. At the time, ABC slipped in and tried to de-rail the constitutional amendment, likely thinking that it could make up any lost ground by lobbying the legislature later on statutory changes.

The only problem? Well, as I've written before, ABC didn't realize that NM was a "court rules" state, which meant all of the bail rules could be changed without the legislature. When it finally figured that out, ABC made a few feeble attempts to raise a stink -- like some sort of legislative resolution and having the Governor try to derail bail reform in Utah -- but in NM, the damage was already done. This suit, then, was just the last ditch effort by the bail industry in NM to try to fix what ABC had broken.

The second point is that the case highlights what I have seen as a trend in the bail industry to take anything -- and I mean anything, including a potentially legitimate case -- and try to make it political for use in the rest of the state or even the country. In this particular case, the bail industry hired lawyers who, following the strategy of ABC and others, systematically screwed up the suit by adding various plaintiffs who lacked standing, all while not adequately researching actual precedent. In the end, the district court awarded what it called "Rule 11 Sanctions." Now, if you're an attorney in the federal courts, you don't want those sort of sanctions because they mean that your filing was baseless and/or frivolous. And take it from me, a guy who used to have to decide these things, the federal courts don't sanction people very often.

So, if ABC even tells you about this case (which I doubt), see if they mention what the court said at the end of the opinion: "This case is a prime example of the waste and distraction that result when attorneys disregard Rule 11's certifications."

For all you bail agents in other states, do remember this particular case when ABC arrives to help.

Bail Industry Loses a Big One

Using the bail insurance playbook of legal arguments, the bail industry in California lost a big case the other day in San Francisco.

You may remember this case. When it was brought claiming constitutional violations through the use of money, all the defendants agreed and refused to fight it. But the bail industry didn't agree, and so the judge allowed the CBAA to intervene so it could provide its best arguments and experts. Unfortunately, it looks like the arguments and experts were provided by ABC and the insurance lawyers.

ABC has already downplayed the opinion, and said the industry will ultimately win, but they've been saying this a while now. I don't blame ABC for using two what we call "interloc" appeals to make you think everything is going your way. It's true that in two opinions we had some bad language. My side was worried about that language, too, but I'm not. I used to write court opinions, including quick ones in fast appeals that didn't have the benefit of thorough briefing and record, and I'm seeing a trend. Anytime a judge spends time on these cases, it always goes against money as a detention mechanism. I've seen this now for a while. When people don't know much about bail you see one kind of opinion, and when they do know about bail you see another kind. Buffin was the kind of opinion you get when someone learns about bail.  

Plus, these cases are not the only things exerting pressure to change. In fact, if a jurisdiction simply decided to do release and detention on purpose, it would cause a chain reaction of things to happen that would end up with the elimination of money. And guess what? That's what's happening all over America. If you don't understand what I'm talking about, then ABC has been leaving you all out of the discussion.

By the way, bail agents, in this opinion you can see -- once again -- a court publicly trash the bail industry's expert witness by calling his testimony and research flawed. This guy has been a friend to ABC for a long time, so I get whey they like him and want to give him a bunch of money. But he's really hurting your cause.

These Will Be Easy To Refute

I just read ABC's comments to the Uniform Law Commission, and boy they're a big mess. It appears ABC still doesn't understand what preventive detention or the word "bail" mean. Refuting them will be a bit of a breeze and likely (once again) embarrassing for the industry.

It reminds me of footnote 20 in the Harris County order, in which the judge said, essentially, "Boy, ABC, you don't even know what the word bail means, do you?" That's pretty sad.

Bail agents, these arguments are killing you.

Expect More of This, Bail Agents

Here is a link to a story talking about a big antitrust lawsuit against bail bond companies in California.

I guess I don't have to tell you that having something like this hanging over your head doesn't really bode well for any sort of referendum vote.

Note that one of the most damaging statements in the story came straight from the mouth of a bail insurance guy. We actually used other statements from that very same bail insurance company to fight a group called ALEC, which had to come out from under the shadows due to pressure. For whatever reason, ABC and its members sure do like to make damaging statements on the record.

Lots of stuff the bail insurance companies have done over the decades probably seemed like good things at the time, but it's all coming back on them now. Staying away from public safety, arguing there's no presumption of innocence, setting up barriers to keep from paying forfeited amounts, avoiding any decent self-regulation, fighting any attempt at reform, claiming that their subjective notions of risk trump anything remotely objective, and, now apparently, promoting price fixing.

You're only going to see more of this sort of thing. It's baked in.

Fifth Circuit Grants Motion to Dismiss Appeal in Harris County

Yesterday the Fifth Circuit Court of Appeals granted the motion of recently elected Harris County judges to dismiss their appeal of the preliminary injunction won by bail reformers last summer. You can read about it here.

As you recall, that's the earth shattering injunction that -- theoretically -- could change bail practices across the nation simply because Harris County practices look identical to those in virtually all American counties. I've been teaching on the injunction since it came out, and it's reasoning is nearly perfect.

This all means massive changes to misdemeanor bail in Harris County, but the same arguments apply to felonies, and it's just a matter of time before people understand that.

One outgoing judge quoted in the article said, "I remain convinced that fighting against bail reform was a mistake." Not to belabor the point, but isn't this pretty much what I've been writing on this blog for the past 5 years?

Indeed, this particular fight was apparently a nine million dollar mistake.

The article also mentions that the county fired their big shot lawyers. You remember them? They're the ones that the insurance companies said were going to stop bail reform altogether.

Again I call your attention to ABC's declaration recently that the Third Generation of Bail Reform has "imploded." This is about as far from implosion as you can get.

I'll conclude with something I wrote in my very first document about bail -- bail reform is inevitable. And yes, accordingly, it's a mistake to fight it. I think the insurance companies know that (although it's hard to tell what they actually know about bail), but they continue to fight perhaps because they understand the future of release and detention in America has no room for them. Theoretically, at least, there is (or maybe was) room for bail agents, but it looks like all of the fighting is really beginning to backfire on the entire industry.

Winter is coming.

Janice Dotson-Stephens

Say her name. Five months in jail on a $300 bond. Died in custody.

Exclamation Point

And to add an exclamation point to the idea that the third generation of bail reform has most definitely not "imploded," this week alone I learned that three new states are having summits and/or creating statewide groups to look at pretrial reform in the next several months. I'm invited to two, and I'm pretty sure I'll be participating in the the third because I've been out there several times already.

This thing is just now taking off.  Get used to being disappointed by the bail insurance companies and ABC.