Bail Insurance Companies and the Arnold Foundaton Research

The Arnold Foundation has released some fascinating research using big data-sets to help further pretrial justice. If you want to read about the research, go to:

http://www.arnoldfoundation.org/sites/default/files/pdf/LJAF-Pretrial-CJ-Research-brief_FNL.pdf.

I’m going to talk about only one of the research papers because the commercial bail insurance industry has already misinterpreted it for their own gain.

The Arnold researchers, using some really sophisticated statistical analyses, demonstrated that lower risk (as determined by the current Kentucky pretrial risk instrument) defendants detained for more than 24 hours were more likely to fail to show up for court and to commit new crimes both short and long term. This is an important finding that leads us to try to persuade judges to do everything in their power to release a lower risk defendant once that defendant is deemed safe enough to be managed within the community. Since money tends to detain and to prevent release of bailable defendants, doing things like setting a surety bond will actually increase the risk to public safety and court appearance whenever that type of bond delays or prevents release. And, of course, those types of bonds both delay and prevent release.  

By the way, I recently reported on a study by Dr. Michael Jones showing that there was no difference in public safety or court appearance rates when judges used unsecured (having to pay money only if the defendant fails to appear) versus secured (having to pay money up-front in order to get out of jail) bonds. Thus, these two studies together should guide judges naturally toward using unsecured bonds whenever those judges think that money is an appropriate condition of release. Personally, I don’t think money is ever appropriate, but for those judges having a hard time with that idea, using an unsecured bond at least gets the defendant out of jail quickly – thus avoiding the deleterious effects of short-term detention – and at no cost to public safety or court appearance rates.

I think the bail insurance company lobbyists recognize this important coupling because now they are trying to pick apart the Arnold study. Basically, the bail insurance companies make a lot of money when judges set surety bonds and are content to wait around while defendants take a week or more to come up with the money they need to get out of jail. That is, essentially, one of the biggest problems with a secured bond system administered through commercial sureties: it leads to people taking longer to get out of jail, and some people never get out at all for lack of money. Now it looks like keeping people in jail for even those short periods of time is messing up them and society as a whole. Really, we didn’t need a sophisticated study to tell us that.

The purpose behind limiting someone’s pretrial freedom is court appearance and public safety – not just court appearance as the bail insurance companies say. Moreover, bail never means any kind of “guarantee,” which is what the bail insurance companies appear to be saying as well. The United States Supreme Court has been clear in saying that all we can expect from pretrial release is “reasonable assurance” of any particular outcome, such as public safety or court appearance. There are no guarantees in bail – risk is inherent and, in fact, necessary to our very democracy. Saying that a surety bond is a guarantee of court appearance not only misapprehends the foundations of bail, it is incredibly misleading. In fact, a surety bond doesn’t even give us reasonable assurance.

If I were in the bail insurance business, I would stop trying to pick apart the Arnold study and start trying to figure out how to change my business practices so that defendants deemed safe enough for release would at least get released quickly, even if that meant I might not make as much money. Any delay in releasing a lower-risk bailable defendant is wasteful and ineffective. Now, thanks to the Arnold researchers, we see that it’s also dangerous.  

Nelson Mandela

“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats is highest citizens, but its lowest ones.”

                             Nelson Mandela (1918-2013)   

Bail and Money

Not much time to blog lately, but that’s only because it’s an exciting time for pretrial justice. Jurisdictions around America are seeing the benefits of improving various parts of the pretrial phase based on legal, historical, and empirical research.  And one of the best empirical studies ever has to be this one from Mike Jones over at the Pretrial Justice Institute. Essentially, this study says that secured money doesn’t matter for keeping people safe or for court appearance. I’ve been saying that for a long time, but now Mike has gone and proved it.

Secured money does matter, however, if you want to keep people in jail. No big surprise there – defendants who have secured financial conditions on their bail bonds (either cash or surety) stay in longer and some don’t get out at all. It’s fascinating, too, because the study also shows that a whole bunch of those folks who stay in the entire time end up getting released just as soon as they plead guilty. Too risky to release pretrial, okay once we know they’re guilty. It’s a strange world.  

America ushered in the commercial bail bond system and defendant self-pay laws at the end of the nineteenth century primarily because we had a problem with bailable defendants being unable to find sureties willing to do it for free. Unfortunately, the new commercial system was based primarily on secured bonds, and so we only exacerbated the unnecessary pretrial detention issue.

Whenever commercial bail bondsmen and their big insurance company lobbyists say that we should keep them around because they are good going out and finding folks who have skipped court, these days I just say, “Who cares?” If you take 100 defendants and you whittle them down to that smaller percentage who are actually released on a surety bond and who then skip court, you’re looking at about one or two people. So even if you believe that the bondsmen go out and get those two people (I don’t believe it and I have research to prove it), it’s still no excuse to tolerate a system that essentially keeps about 30 of those 100 defendants locked up for lack of money to pay the secured financial condition.  

For 80 or 90 years we have amassed a great deal of research showing fundamental flaws with the commercial surety system. Now, we’re seeing that the very premise behind the system and any system based on secured bonds – that paying some portion of the money up-front motivates defendants to come to court and stay out of trouble – doesn’t fly.  

Here’s the link to the study: http://www.pretrial.org/download/research/Unsecured%20Bonds,%20The%20As%20Effective%20and%20Most%20Efficient%20Pretrial%20Release%20Option%20-%20Jones%202013.pdf

The Purpose of Bail and Conditions of Bail

Well, the name of this blog is “Bail Basics,” and there’s nothing more basic in the field than the meaning and purpose of bail itself. So basic, in fact, that I’ve spent the last six months tracing the history of bail from England to America to determine its proper meaning and purpose. It’s important to think about, I believe, because I’m starting to see a nasty trend in America concerning this very thing. 

That trend concerns the notion that it’s okay for the government to use bail as a way to “pay for stuff” – from public defenders, to restitution, to costs and fees, to other worthy programs that simply need money. Interestingly, I have seen both commercial bail bondsmen and those of us who can be said to oppose commercial bail bondsmen pulled almost hypnotically toward the idea. I mean, think about it: since there is so much money involved at bail, why not use it to pay for services? And since there is no decent check on the arbitrariness of money at bail (i.e., lawyers rarely object and appeal amounts of financial conditions, and appellate courts rarely overturn them) then we’re looking at a huge pool of money. This pool becomes even bigger if we can just get a judge to say “fifty thousand dollars” instead of “ten thousand dollars” in any given case. And believe me; it’s not all that hard to get a judge to make that jump.

So why not use bail to pay for stuff? Because the meaning and purpose of bail don’t allow it, and having a proper purpose for government action is the first step toward assessing that action under a variety of constitutional theories. Among other things, Stack v. Boyle can be read for the proposition that the government must have a proper purpose to limit pretrial freedom, and ever since that opinion was released in 1951 other courts and scholars have agreed that bail set for an improper purpose is unlawful. This follows from any legal analysis, such as in bail, which requires some sort of a balancing test to determine its propriety. In bail, you’re allowed to limit pretrial freedom, but you must do so only to achieve proper purposes. The ways that you choose to limit freedom must be balanced against your reasons for limiting it in the first place.

Technically, there’s only one proper purpose of bail itself, which is to release people. That’s why bail is correctly defined as a process of release, and why the U.S. Supreme Court has equated the right to bail with the right to freedom before conviction and the right to release before trial. Concomitantly, the purpose of “no bail,” which is also lawful if done correctly, is to detain people.

The constitutionally valid purposes of conditions of bail (and that’s what we’re talking about when we talk about money – a financial condition of bail) are court appearance and public safety. Those are the only two purposes that have been approved by the courts thus far in the history of bail in England and America. Not punishment. Not detention. Not making money. In fact, some states have some pretty big authority for this last prohibition when their courts state explicitly that bail may not be set to “enrich the treasury.” By the way, when we talk about money at bail, the only truly proper purpose is court appearance and not public safety (for a variety of reasons), but that’s the topic of another blog.

The reason that I’m writing about this today is because I saw a recent Indiana newspaper article that reported on a former bail bondsman presenting a plan to the legislature to get judges to use more surety bonds by dividing up the potential forfeitures among a variety of entities, including the court, the public defender, the clerk of court, and even to a school fund. I can’t blame bondsmen for trying this tactic – if they can get everyone to share in the profit of bail, then they might be able to maintain their own hold on the system and continue to profit from it themselves. They are a business, after all, supported by big corporate insurance companies with a fiduciary duty to make money despite whatever erosion to justice that may cause.

But that’s no excuse for people who actually administer bail, and I have seen plenty of those folks succumb to the allure of using money at bail to “pay for stuff.” For example, during its recent fight over whether to re-introduce commercial bail bondsmen to Wisconsin, the state’s judges and court clerks said a commercial bail bond system will interfere with their ability to collect restitution from defendants’ financial conditions of release. Interestingly, it was commercial bail bond industry supporter and ALEC member, Assembly Speaker Vos, who pointedly stated, “The point of bond is never to pay court costs.” He was wrong on everything else he was trying to do surrounding bail in Wisconsin, but he was dead-on about the purpose.

Even in my home state of Colorado, we had a number of well-intentioned folks putting together various bills that included using financial conditions of release to pay for stuff like pretrial services programs. One bill, which would have forced judges to apply even non-forfeited monetary conditions of bail to court costs, etc., was thankfully amended to at least make it non-mandatory.

The reason all of this is important is because money doesn’t do anything at bail except detain people. And as more and more people learn this, they are using money less and less. That’s why the bondsmen are coming up with innovative plans to persuade others to share in the potential profit of a money-based bail system. It’s a last-ditch effort in some areas to retain a money-based system over a risk-based one that instead uses appropriate conditions that actually work to provide reasonable assurance of public safety and court appearance. Unfortunately, if people succumb to the allure of the money, they will only perpetuate a process that history shows is unfair and simply doesn’t work.

  

I think it’s quite simple. If any judge were to set a financial condition on a bail bond and announce on the record, from the bench, that the amount was necessary so that the defendant could help pay for various programs across the state, that bail setting would be declared clearly unlawful on appeal. Of course, judges don’t tend to say those things on the bench, which is why it’s important that we articulate and effectuate the proper and improper purposes of bail so that the improper ones can’t possibly creep in.       

The Great Tim Murray

A blog that I didn’t think I would be writing for a while is this one, which reacts to the announcement that Tim Murray will be retiring from the Pretrial Justice Institute in 2014. If any of you know Tim, you already know that his tenure as the Executive Director at PJI is only one of several incredibly important roles he has played in American criminal justice; indeed, any one of the things he has done in his life would suffice for a full career for anyone else. But what he has done through PJI is nothing short of miraculous. He has taken an American justice system complacent with bad pretrial practices and somehow convinced it to change. Through compassion, intellect, and simple logic, he has shown that the administration of bail is something worth thinking about and worth improving. The whole country is behind him now, which is probably why he feels he can step back.

I’m happy to read that he will still serve in a capacity that will allow me and others to use his wisdom, ideas, and energy. There was a time in this country when the only person running around talking about bail and pretrial justice was Tim. Now thousands of people are running around and talking about all the things that they learned from Tim. I am definitely one of those people. No matter how you look at it, there just aren’t many folks who can say that they moved the criminal justice system a little closer to justice itself. Tim can, and for that I regard him as an American treasure.    

Bail in New Jersey

There seems to be little time to blog lately – so many great advances in pretrial justice across the country that it’s hard to keep up. Here is a video discussing New Jersey’s entry into the revolution. It’s not long, but it shows agreement between both prosecutors and defense attorneys on the need for improvement. In passing, they reference the need to change New Jersey’s constitutional provisions dealing with the right to bail so as to further best practices. This is not uncommon – many states are realizing that these constitutional provisions, which we often feel are unassailable, must be changed in order to fully effectuate a legal and evidence-based “bail” – “no bail” dichotomy that results in the appropriate placement of defendants pretrial. If it does it right, New Jersey will allow for the transparent detention of high risk defendants while allowing the release of lower risk ones, all without the need for money and its unhealthy tendency to sort things based on wealth.

Happy watching!

http://watch.njtvonline.org/video/2365050072.  

Bail and One's Right to It

A Transcendent Pretrial Decision

It’s an issue that simply does not come up that often: “When a state constitution says that there is no right to bail if someone commits murder or treason “when proof is evident, or the presumption strong,” who must carry that burden – the defendant or the prosecution? Indeed, in a well-regarded treatise on criminal procedure, the issue warrants only two lines of text and nary a footnote. Nevertheless, in an opinion dated June 25, 2013 (Fry v. Indiana, No. 09S00-1205-CR-361), the Indiana Supreme Court not only decided the case correctly, it did so with an opinion that transcends the legal issue, providing a glimpse into the sort of knowledgeable court decisions we might soon expect in this latest generation of American bail reform.

The holding is simple: for one hundred fifty years in Indiana, defendants facing either murder or treason charges have been required to first show that proof is not evident, or the presumption is not strong to be entitled to bail. Now, wrote the Court, “we hold that  . . . the burden lies with the State to show that ‘proof is evident, or the presumption strong.’” The Court’s rationale is strong and sound, and based on a number of well-reasoned factors, such as an inherent unfairness attaching to a somewhat inscrutable requirement that the accused, “saying there is and should be no evidence, should go into the wide world in search of that which he says does not and should not exist.” Indeed, the Court wrote, given that a primary benefit of bail is that it permits the unhampered preparation of a defense, requiring an incarcerated defendant to “disprove the State’s case pre-trial in order to earn the right to be unhampered by incarceration as he prepares to disprove the State’s case at trial” is a “backwards process” with “no valid justification.”

But despite the narrow issue, the opinion is exceptional for three reasons. First, it includes frequent and forceful references to the presumption of innocence (e.g., “we find the contrary procedure used in the past to be incompatible with the fundamental guarantee presuming an accused’s innocence until proven guilty beyond a reasonable doubt;” it “flies in the face of the principle that the presumption of innocence abides in the accused for all purposes while awaiting trial.”) Such statements are appropriate retorts to those who have recently attempted to downplay the presumption of innocence at bail, often for political reasons or monetary gain.

Second, when faced with the prosecution’s argument that the burden should not be changed because “defendants have carried this burden in Indiana since 1866,” the Court bluntly wrote: “For one thing, ‘because that’s the way we’ve always done it’ is a poor excuse – the merits of stare decisis notwithstanding – for continuing to do something wrong.” Across America, criminal justice decision-makers are being faced with strong arguments to improve bail practices. In some cases, those practices have spanned 100 or more years and have loyal adherents who oppose improvements simply because “that’s the way we’ve always done it.” Those decision-makers should be heartened by a state supreme court willing to confront the argument using little more than common sense.

Third and finally, in deciding the more detailed parameters of the burden of proof, the Court intentionally noted (state supreme courts do nothing casually) a recent policy paper from the Conference of State Court Administrators, which advocates revisions to bail laws that support risk-based over money-based practices, promote nonfinancial release options, and reduce reliance on bail schedules in favor of more evidence-based risk assessment. The Indiana Supreme Court wrote: “To attain greater success at incentivizing appearance at trial, enhancing public safety, reducing costs of pre-trial custodial detention, and achieving greater economic equity and fairness in the availability of release from pretrial detention, there is growing interest and exploration of pre-trial release programs based on evidence-based practices as an alternative to monetary-based bail. Our opinion today should not be read to limit the availability of such practices in Indiana.”

There are numerous bail practices that are simply wrong and backward and that require remedy. As the Indiana Supreme Court noted, sometimes these practices are 150 years old, and locked into place not only by custom and habit, but also by such bedrock legal principles as stare decisis. The Indiana Supreme Court’s opinion, however, provides encouragement that remedies are nonetheless possible. The opinion should be a wakeup call to those who believe the courts will not engage in the struggle for pretrial justice. And to those currently in that struggle, the opinion should bolster their resolve by providing a courageous and knowledgeable example of incremental pretrial reform.