Changing Bail Laws

My new paper is titled, Changing Bail Laws, and you can find it here.

It again answers the question, "If we change, to what do we change?," and is designed to be used along with my earlier paper, Model Bail Laws. It's shorter, though, so it simply raises the issues, and only solves the ones I thought were most important (like the need for a charge-based detention eligibility net). The longer paper is still helpful, and can be thought of as a template to show states the kind of detail work necessary to answer all the questions and to justify pretrial detention provisions. It is my model. States can come up with a different model, but I expect them to justify it to the same extent.

I have had several people ask me what they should change in order to accomplish a moneyless system of pretrial release and detention. This paper is my answer.

If I say to you, "California's SB10 created a detention eligibility net outside of its constitutional boundaries and a further limiting process that is subjective, resource-driven, and ineffective," and you don't know what I'm talking about, then please read these two papers. This, in my opinion, is the future of the field.

California? Dude!

This is the longest I've gone without a blog. I've simply been too busy spreading basically the same message across the U.S. The gospel according to no money bail will soon be coming to you.

A lot has happened in a month -- some good, some bad, but I really just lack the time to report on all of it. Too many airports and hotels.

California eliminating money bail is an entirely different matter, however, only because I've been warning about this happening for a long time.

In multiple blogs I have warned that the bail insurance companies' strategy of fighting everything and everyone while not offering solutions (no, keeping everything the same is not a solution) would eventually lead to the elimination of the industry. And California is simply the latest case in point.

ABC (oh, by the way, I wouldn't blame the ABC lobbyist for any of this -- he takes orders from the suits in the insurance companies) traveled to California like me and presented its information. Then, when things looked like they weren't going their way, the insurance companies started fighting -- even insulted  the Chief Justice of the California Supreme Court. Nice going, guys. When the time comes to decide whether to keep commercial bail, people remember all that animosity. So now you're gone, and the only thing that can save you is a statewide ballot initiative?

Maybe some of you don't remember, but all of this started a long time ago when a bail insurance guy came to my little county and decided to try to end our county pretrial services unit. When that didn't work, and it looked like we might start making changes to the money bail system in our county, the bail industry really ramped up the fight and even eventually tried to run a statewide ballot initiative, basically picking a fight with everyone in criminal justice. We fought back and won big. The irony? The irony is that it was a lobbyist from a California-based bail insurance company that got that whole fight started in Colorado. Again, nice going. When we end money bail in America, I'll be giving a medal to that particular bail insurance company.

Since then, though, I felt bad about what seemed to be the inevitable plight of the bail agent, and so I spent years laying out a plan that would include those agents in the future of release and detention in America. But the industry did not listen. Instead, through ABC and that other group, it fought everyone -- often personally -- and slowly burned bridge after bridge until finally what you see is everyone simultaneously tossing the industry aside like as an afterthought.

So now I see from the bail insurance companies' posts online that their plan is to -- yes, you guessed it -- keep fighting. Fight without thinking. Fight without strategy. Fight without a solution. I suppose they have to at this point. But it's too late. Even if those insurance companies win, that fight will only further sour attitudes against the industry, and in the next round there will likely be money but no commercial sureties. Count on it. And that's only if they win. Remember Colorado? I spent 6 months of my life fighting the industry and helped us win that initiative 2 to 1. Someone told me they spent millions on that initiative. We spent $10,000.

Bail agents, you've hitched your fate to the bail insurance companies and their lousy strategies. You really should have expected this.

A Bad Couple of Days for the Bail Insurance Companies

Yeah, it's been a bad couple of days for the bail insurance companies.

First, they lost that big case in the Third Circuit -- you know, the one they convinced you they'd win because they spent all that money on some big shot lawyer. You know, the insurance companies keep trying to convince courts that they know what "bail" and the "right to bail" are, but they keep getting told they're wrong. I find it really interesting that bail insurance companies and their lawyers don't know what those words mean.

Then, yesterday, the Arnold Foundation mass-released the PSA to all comers. I know the bail industry doesn't know anything about all this, but take my word for it, it ain't good for the bail industry. I never could figure out why insurance companies would base everything they do on actuarial tools except bail. Oh well, all I know is the bail insurance companies don't like them, and now they'll be everywhere. Plus, wait until you see the training behind them! No more money.

Then, today, there's this in the National Review. Seems like people in America want to change the way we do bail and no bail.

Yep, things are definitely changing. Bail reform is low hanging fruit.

Bail Industry Loses in New Jersey (Again)

This is getting pretty old. When I go back into the old bail insurance Facebook posts, I see how excited they were about telling bail agents that their savior, Paul Clement, was bringing a suit in New Jersey that will put an end to this whole bail reform thing.

When the insurance companies lost in the district court, they tried to spin it, but I wrote about it here.

Well, it went up to the federal circuit court, and the bail industry lost again. Here's that opinion. I see they're spinning that decision today as well.

I don't have enough time to document all the instances in which bail insurance companies mislead bail agents by hyping their work at battling bail reform. But I can't think of a single time that a bail insurance company blazed some giant headline of "Breaking News" to announce a thing that, six or seven months later, didn't fizzle out.

There will eventually come a time when bail agents everywhere will realize that the insurance companies don't know anything about bail, have no strategy to deal with what is likely the demise of the industry (the strategy they've chosen, to fight everyone and everything, is only making judges decide not to use commercial surety bonds), and missed out on the opportunity to actually help jurisdictions with pretrial release and detention.

Wall Street Journal Article About the Bail Industry

Here are two tidbits from yesterday's Wall Street Journal article about the for-profit bail industry:

"Overall, the net premiums of bail bonds written nationwide declined for the first time last year following five consecutive yearly increases. In 2017, premiums written dropped 3.8% to $119.5 million, according to insurance-ratings firm A.M. Best."

"The A.M. Best Report shows that the total face amount of bail bonds posted in the U.S. dropped to $15.9 billion last year, a 4.4% decline from 2016 and a reversal in the trend from the previous three years." 

How's that ABC strategy of fighting everything look to you now? Are you still winning, or is something else going on? 

By the way, ABC's focus on "risk assessment" is misplaced. Risk assessment tools only replace other forms of risk assessment. Money is risk management. Other forms of risk management replace money. The insurance companies don't know what they're talking about when it comes to risk assessment, which is kinda weird given that insurance companies use actuarial risk assessment tools all the time (and when we explain this to various stakeholders, everyone laughs with that kind of "wow, how can they be so dumb" laugh). The industry has bought into a strategy by bail insurance companies that are ignorant about basic principles of bail, including the very definition of bail (see Harris County order granting preliminary injunction at footnote 20). Accordingly, I expect to see many more articles like the WSJ article in the future.

Al Jazeera Video About Bail Reform

Here's a little video about bail reform from Al Jazeera.

I've been watching posts from the bail industry for a long time, and I can tell you that there is nothing in this video that it'll like. It was a bit of a gang fight, with ABC losing due to its inability to concede certain basic facts about the money bail system. 

So . . . I assume that even though someone from ABC was on the show, ABC either won't mention anything about it, or it'll start attacking Al Jazeera and the others personally.

ABC's intentional strategy to argue and fight everything, rather than to think of solutions, is the cause of all of this. Bail agents, this is your future.

Judges/County Lose in 5th Circuit

You know, the only reason I think I keep this blog going is to occasionally tell people how things actually turn out.

ABC's Facebook page still has the big "Breaking News" banner about a bunch of judges in Harris County demanding some new injunction and the County asking for rehearing in the O'Donnell case.

Well, they lost all those motions.

You can thank me for bringing you all up to speed.