Tuesday, February 2, 2016

Bail Reform and the Poor: Why the Truth Might Surprise You

There is “one fact” out there that public sector pretrial proponents don’t want anyone to know.  And that fact is that the poor don’t really languish away in jail because of the bail bond industry. Why don’t they want anyone to know? Because that one piece of information completely discredits the foundation of their argument against the private sector bail industry.  That one fact challenges the entirety of their false narrative that the commercial bail industry,  or "money bail" as they refer to it, keeps the poor in jail.  And that is extremely important since that false and misguided narrative has become the central mantra of the bail reform movement.

Over the past couple months there have been several news articles published around the country with headlines like, “Advocates Push Bail Reform to Stop Penalizing People for Being Poor,” and “In Jail, Too Poor to Make Bail.”  While these news headlines create excitement and put the cross-hairs on a single protagonist (the bail industry) they are patently false.  If these headlines were to be true, then there would have to be two assumptions that everyone would need to believe.  First, that law enforcement is strategically going out and arresting people for merely being poor.  Second, that rich people and poor people each follow a different set of laws.  I think it is important to look at each of these assumptions separately, because when you do, I am sure that you will see how ridiculous the argument becomes.

Let’s look at the first statement, that “People are not arrested for being poor.  The last time I looked there does not seem to be a law or ordinance in any county across the country that says it is a crime to be poor.  Therefore, it only makes sense that there can never be a situation where someone is arrested for being poor.  The hard truth is that the ONLY reason that someone is sitting in jail is because they have been “accused” of a crime.  Somewhere at some time a law enforcement officer had “probable cause” to approach, question and arrest that individual for potentially committing a crime.  This fact never seems to be mentioned in stories about so called bail reform, but as you can see it is an extremely important fact.  People are not being arrested based on the size of their wallet, but rather on the good chance (probable cause) that they committed a crime.

The same goes for the second statement…”People do not sit in jail because they are poor.”  Many of the arguments being made against the commercial bail industry today are all focused on the premise that bail agents only let rich people out of jail while ignoring those that are poor.  These arguments are not only false, but completely myopic and foolish.  To be honest, I think that this myopia is based on a lack of understanding of the purpose of bail and how it works.  Let me explain why.  First, if you were to ask any supporter of public sector pretrial programs how commercial bail works, I would bet you that the answer you would get would be incorrect or simply they might reply, “I don’t know.”  The reason I say this is because if you fully understand how bail works, you could never say that the industry is unfair to the poor.  Before I get into this a little more, I first wanted to deal with the other side of the coin…that the bail industry only serves rich people and helps them get out of jail, and debunk this myth as well.  This explanation is actually pretty simple.  The so called “Rich” people that opponents of commercial bail talk about, do not use bail bond agents.  Instead, they write a check to the court for the full amount of the bail.  Bill Cosby doesn’t need a bail agent, he writes a check and posts the full amount of the bail himself.  If anything, this scenario shows how commercial bail industry isn’t designed for the rich, but rather it is specifically designed to level the playing field and help those that do not have the means to put up the full amount of the bond.  Bail gives ALL socio economic levels an opportunity to be released by charging a small fee which is only a fraction of the full amount of the bail.

Next, when someone makes the statement that someone can’t get out of jail because they are poor, they don’t fully understand who the customer of a bail agent really is.  A bail bond agent’s customer is NOT the defendant.  It is the family, friends and extended members of the defendant’s social circle that want that defendant out.  So the socio-economic situation of the defendant in reality is really irrelevant since they rarely are the ones paying to get themselves out.  In fact, based on input from several of the nation’s largest sureties, 95% of those that are released from jail have their bail paid by a third party.  Only a very small percentage of defendants self-bail…or pay their bail themselves.  That third party contract is what makes bail so effective.  Instead of relying on a defendant to show up and solely hold them accountable, bail ties an additional third party to the contract that has both an emotional and financial incentive to not only get that defendant to court, but also keep them out of trouble while they await trial.

As you can see, when you look more closely and fully understand the bail process and its purpose, it is easy to understand that bail agents do not discriminate against or feed on the poor.  But rather they are a lifeline to those defendants and families who don’t have the ability to pay their own bail; all the while, providing better security for the community and accountability to the court around each defendant that is released.  Aren’t those things the most important?

Based on the above facts, you really need to begin to question the credibility and motives behind those pushing the bail reform movement forward.  To put a target on an industry that plays such an essential role in the criminal justice system seems misguided and illogical.  If we truly want to reform our criminal justice system, the answer shouldn’t be to dismantle the private sector’s role, but rather to bring all stakeholder together including the bail industry to have meaningful and productive discussions to develop the most efficient and effective way to ensure that our system provides justice for everyone…not just the rich…and not just the poor.

Wednesday, January 27, 2016

Bail Reform: Bully Activism at its Best

To say the criminal justice system is a complex thing is an understatement at best.  To say that there are things that could be improved in the system is also simply pointing out the obvious.  However to say that the cure for improving this imperfect complex system is as simple as eliminating the commercial bail industry is just ludicrous.

Over the past several months there have been several lawsuits filed around the country by two activist attorneys on behalf of a Washington D.C. non-profit.  Most of these lawsuits have been filed in small counties where these attorneys assume that they can force the hand of these small local governments to give in and settle the cases.   Unfortunately this tact of utilizing the court system to challenge policy, is ineffective at delivering any type of workable solution to the real problems in the criminal justice system.  Additionally, the outcome being forced on these counties is going to lead to greater socioeconomic inequalities and substantial levels of decrease in public safety and accountability across the system.

The argument being made in each of these lawsuits is one of constitutionality.  The activists claim that predetermined bail schedules are unconstitutional because they violate the equal protection clause provided in the 14th Amendment.   Simply said, those with money are able to bail out and those without money must stay in jail.  The problem with this statement is that it distorts and ignores the purpose of bail and the strategic rationale behind the creation of bail schedules in the first place.  Here are a couple facts that you won’t hear from the activists.  First, bail schedules are not created through magic or chance or secret money schemes.  They are well thought out financial legal determinations made by a panel of several judges in a given county.  They are also continuously reviewed and updated on a predetermined schedule to ensure they maintain fairness and relevance over time.  Second, the main purpose of these schedules is to speed up and facilitate the release process.  When courts are closed, defendants are able to have a bail set by the schedule and be released quicker than having to wait for the court to open the next day.  In other words, more people spending less time in jail and saving the county the cost of a jail bed.  Once again, the intended purpose of bail schedules is to speed up the release process for defendants and to make an argument against a process intended to quickly and efficiently support a defendants 8th amendment right is nothing but counterproductive and frivolous.

At the core of these lawsuits is the belief that the bail system is the primary reason why problems exist across our criminal justices system.  Bail gets blamed for jails being crowded.  Bail gets blamed for jails letting too many people out. Bail gets blamed for racism.  Bail gets blamed for keeping poor people in jail.  While each of these accusations makes great headlines for the activists and those that support them, the reality is that each of these claims is patently untrue.  Bail is, in actuality, the ultimate equalizer in the criminal justice system.  It exists in a space between the defendant, the victim and the community and ensures that all parties have an equal chance at justice.  Without bail the poor would be worse off and our communities would be less safe.

Let me explain.  In each and every one of the lawsuits being filed by these activists, they are making the claim that bail is only for the rich and discriminates against the poor.  This couldn’t be further from the truth.  What these activist lawyers don’t understand is that the main customer of the bail industry is the poor. Why?  Because the so called “rich” will typically post the full amount of the bond and not use a commercial bail bondsman.  The bail industry exists to assist those families who cannot afford to pay the full amount of the bond.  The bail industry makes release more attainable and affordable by charging a fraction of the amount of the set bail for a promise/guarantee to return to court.  Without bail, the jails would quickly fill up and the only alternative would be to release everyone on simply their promise to appear.  And we know from history and experience that this form of release is the least effective at ensuring a defendant returns to court.  Releasing someone from jail with NO financial incentive to return, not only eliminates any sense of accountability in our criminal justice system, but also creates a real threat to public safety.  When a defendant fails to appear for trial, the victim is re-victimized and the community is less safe from future crimes.

It is important for people to understand that the ultimate purpose of bail is not about release, it is about appearance.  Defendants should not be released if there is no confidence in them returning to court.  What bail does is create confidence amongst the victims, the families, the communities and the courts that there will be a trial and that justice will have its best chance at being served.  How can anyone think that removing this essential component from the criminal justice system is a responsible or even moral act.

While not a perfect institution by any means, the bail industry is not the evil empire that it is being made out to be by those that have openly admitted to wanting to end its existence.  While only a small cog in the overall complex machine that is our criminal justice system, bail is still an essential and “load bearing” piece of the puzzle that not only supports racial and socioeconomic equalities, but does so in a way that is fair and accountable.  In my view that is something that can’t be overlook and shouldn’t be removed from the system because of misguided and frivolous bully activism.

Tuesday, November 10, 2015

Bail Reform: Is it Really What the Public Wants?

I never thought I would be quoting Donald Trump as it relates to the bail industry, but I couldn’t think of a more appropriate statement than the following, “We must be doing something right, we are leading in the polls.”  This statement is in regards to a recent poll being conducted by The News Journal in Delaware.  The News Journal is one of 30 print sites for USA Today and can be found at delawareonline.com.  In other words, this is no rinky dink media site.   If you don’t already know, Delaware is one of the states considering getting rid of “money bail” or as they refer to it bail reform.  The reality is that “bail reform” in the minds of those driving this initiative has nothing to do with reform but rather the complete elimination of bail from the criminal justice system.  Why I mentioned Donald Trump in my opening sentence and referred to the poll being administered on The News Journal website, is because while bail reform is being pushed by pretrial advocates and the public sector, it looks like it isn’t being supported by the public.  According the poll on the Delaware online website asking the public should Delaware end cash bail, the public is overwhelmingly stating its position. And that position is NO!  As of 11:00 AM PST today, November 10, 2015, 54% of those taking the poll have said keep the money bail system, while only 37% have said no.  Here is a link to the poll… https://polldaddy.com/poll/9168661/?view=results.

The results of this survey raise a very interesting and important question in my mind.  That is, why is so much media attention and effort being spent by activists and pretrial advocates on the elimination of money bail?  Especially when polls like this one all show that public opinion seems to support the bail industry.  In fact, if you survey (and we have) most stakeholders in the criminal justice system, you will find that their support of commercial bail is overwhelming and their perceptions of the industry are mostly positive.  Below are some survey results regarding bail that you will never see in the media.

  • In a 2012 survey at the American Judges’ Association National Conference, 96% of judges said that when a defendant was released on a commercial bail bond they were confident that they would appear in court.  30% of judges had NO CONFIDENCE that a defendant would show up when they were released by a public sector pretrial services agency.
  • In a 2012 survey taken at the eCourts Conference, 91% of criminal justice stakeholders (clerks, judges, administrators and attorneys) said that commercial bail plays an important role in the criminal justice system.  Additionally, when asked to compare commercial bail and public sector pretrial services in terms of effectiveness, 86% described bail as effective while only 48% described pretrial services as effective.
  • In a 2013 poll taken by NewsOne in Cook County (where there is no commercial bail) consumers were asked whether taxpayer dollars should be used to bail out inmates.  The results were an overwhelming “Absolutely Not” with 53% of the vote.
  • In a 2013 survey taken at the National Sheriffs’ Association Conference, 83% of Sheriffs said that using a commercial bail bond is the MOST EFFECTIVE form of pretrial release and the best way to ensure a defendant show up for court.  Only 13% said that public sector pretrial release agencies were the most effective. 

With people both inside the criminal justice system as well as the public at large all supporting the concept of bail and its effectiveness, then why does it seem like so many groups are out to eliminate bail and in the process creating such a firestorm of debate around the issue?

The only thing that I can say in response to that question is, I don’t know.  Is there some sort of secret agenda working within the system to do away bail because they don’t like us?  I don’t know, maybe.  Is there a disdain for the bail community by the American Bar Association because we compete for the same customer dollars?  I don’t know, maybe.  Is there need for the courts to generate more revenue for themselves and the bail industry is in the way?  Once again, I don’t really know.  I wish I did, but it is hard to answer questions that seem so cloak and dagger and laced with conspiracy theories.

That being said, there are a lot of these types of questions that I could answer in the same way by just saying “I don’t know, maybe” over and over again, however I think it would be better instead to tell you what I do know.  There is currently a fundamental shift happening in our criminal justice system.  This shift is an outcome of the “tough on crime” attitude and policies of the past that to be honest, have kept us safe and kept a lot of bad guys in jail.  Unfortunately, as the jails and prisons have gotten more crowded, there has been a shift in ideology amongst our leadership that now looks at our criminal justice system as the problem rather than the well documented and proven increases in crime.  While yes, our criminal justice system can always use improvements to ensure the safe, fair and balanced execution and enforcement of our laws, it does not mean that we should hastily change things and remove those components that are working just for the sake of change.  Any reform must truly be about reform and improving a system. Removing commercial bail from any state or county’s criminal justice system would not improve anything at all, but rather lead to more overcrowded jails, less accountability and more crime, i.e., Chicago and Philadelphia.   History does repeat itself, and if we are looking for a re-run of the ideological criminal justice reform movement of the 60s and 70s, which by the way led to the tough on crime policies of the 80s and 90s, than we will just end up right back where we are today.

The concept of bail is one that has been around for centuries, even dating back to biblical times.  This longevity is not just a testament to the effectiveness of bail as a mechanism for holding people accountable, but also proof of its ability to serve as a tool for ALL in the criminal justice system regardless of race, income level, etc.   As I have said before, the proof is in the pudding, and the pudding here is years of data and research that show how effective this industry is at ensuring our system has a chance to work in a fair and balanced way.  And no matter how hard the public sector pretrial advocates try to spread false narratives about our industry and tout their fancy new “evidenced based risk assessments”, the public will hopefully be able to look past the smoke and see the truth.  Because the truth is anything that these public sector advocates say they can do to reform the criminal justice system, the private sector is already doing it and has been for years at no cost to taxpayers and with much greater success.  It is time our public officials start paying attention to the facts and start listening to those that they represent, because in Delaware, the people are speaking loud and clear, “DO NOT END THE STATE’S CASH BAIL SYSTEM.

Wednesday, September 16, 2015

The Untold Cost of Eliminating “Money-Bail” … A Lot More Money

While proponents of public sector pretrial release are making their way across the country blaming the ills of the criminal justice system on the commercial bail industry, there is one thing that they never seem to want to discuss…and that is the “REAL” cost of reform.  Why?  Because if you begin to add up the cost of replacing the private sector commercial bail industry, which costs counties and states $0 to operate, with more public  sector employees and bureaucracy, you quickly begin to see costs spiral out of control and a whole new definition of public sector “Money Bail” comes into view.  Just this past weekend a story was published on the dailyrecord.com website about the significant cost of bail reform in New Jersey.  Unfortunately, for taxpayers cost isn’t something that was considered.  Based on estimates presented during testimony, it was determined that the cost of a pretrial program in New Jersey could top $200 Million.  …something no one seemed to think about during the state’s bail reform debate despite, the continuous suggestions and objections of the commercial bail industry.

An important fact about public sector pretrial service agencies that the Pretrial Justice Institute, The VERA Institute and the Justice Policy Institute don’t want to share is that providing these services is NOT FREE.  In actuality, they are extremely expensive and require substantially large outlays of valuable tax-dollars to fund.  For example, Washington D.C.’s pretrial program requires a whopping $58 Million to manage only 5,000 defendants.  Using that formula of $11,600 per defendant ($58 Million/5000) and calculating the cost of a placing similar pretrial program in a typical metropolitan city like Dallas County Texas which averages over 22,000 pretrial releases a year, you get a total cost of over $255 Million.  Now if that is not the definition of Money Bail, I don’t know what is.

Additionally, this discussion has just been about cost.  Once you throw effectiveness into the picture, things look even worse for the public sector pretrial programs.  The costs go even higher.  For example, in Dallas County, Texas, a study by the University of Texas at Dallas, determined that there is a cost to the county of $1775 every time a defendant fails to appear in court.  As compared to private sector commercial bail and based on a FTA cost of $1775 per defendant and a dismal appearance rate of only 63%, pretrial services cost Dallas County an additional $11,000,000 in effectiveness (or lack of effectiveness) costs.

Lastly, there is also a social cost to pretrial release.  This is the cost to the victim and a community when the defendant who was supposed to appear for trial doesn’t.  And instead of facing justice, is out committing additional crimes.  While this number is more difficult to calculate and put an actual dollar amount to, it has been determined by some studies to be as high as $25,000 per defendant.

This social cost is probably the most impactful negative costs of ineffective public sector pretrial services.

So, if you are an average metropolitan county in the US that is looking to operate the most cost efficient and effective pretrial release program possible, which option would you choose?

Option 1 – Public sector pretrial services
Operational Costs          $255,000,000*
Effectiveness Costs       $11,000,000**
Social Costs                  Substantial (high rates of recidivism)

*Based on DC pretrial costs of $11,600/defendant multiplied by the number of releases in an average metropolitan county like Dallas County, Texas
** Based on Dallas County Study, Dr. Morris, 2012, the cost of FTA's between pretrial services and commercial bail.

Option 2 – Private sector commercial bail
Operational Costs          $0
Effectiveness Costs       $0
Social Costs                  Minimal (low rates of recidivism)

The comparison is not even close.  Private sector commercial bail is not only more effective in guaranteeing the appearance of a defendant in court, but it does so at zero cost to taxpayers. Additionally, the social cost that bail has on the community at large is much lower.  When people show up for court, they are not out in the community committing additional crimes.  Lastly, through premium taxes and forfeiture payments, the commercial bail industry actually generates millions of dollars in positive revenue for states and counties...something taxpayer funded public sector pretrial programs can never do.

So the next time you hear someone in the public sector talk about the ineffectiveness of “money bail,” it’s time to clarify to key stakeholders that it is the public sector that is the truly the most expensive and ineffective form of money bail around.

Friday, August 28, 2015

Bail Bonds and Finding the Good: What goes right in the criminal justice system everyday

If you are in the bail industry, like me, you probably read all the articles that are published in the media about our industry.  Unfortunately, most of these articles are about negative things.  For example, a couple weeks ago, a fugitive recovery agent in Arizona, broke into the wrong house looking for a fugitive defendant.  To makes things worse, the house belonged to the Phoenix Chief of Police.  This story hit every paper around the country.   Now don’t get me wrong, this situation is horrible and should have never happened, but what people need to realize is that this one story shouldn’t define the entire industry.  Because on August 4th 2015, the same day this was happening, approximately 14,000 other bail agents were doing a whole heck of a lot of good for the criminal justice system.  These 14,000 agents were ensuring that over 90,000 defendants around the country show up for court.  Unfortunately, you don’t see a lot of news stories about that.

Everyday bail agents all over the country are guaranteeing that the wheels of our criminal justice system continue to turn.  As the most effective form of pretrial release, bail agents in 46 out of the 50 states across the country, ensure the appearance of those accused of a crime in court.  Why is this important?  Because when the defendant shows up for trial, the system gets a chance to work.  The defendant gets a chance to tell their story.  The people get a chance to tell their story.  The potential victim(s) gets a chance at justice.  And most importantly, the defendant isn’t out in the community committing additional crimes. 

Unfortunately, the media misses the opportunity to share the reality of this misunderstood business.  Instead, they gravitate towards promoting the dark, swarthy, crooked images that have been created and promoted by Hollywood, reality television and crime novelists over the years to sell more tickets, ratings and books.  In addition to getting the image wrong, the majority of stories about the bail industry get the facts wrong too.  From stories about one-off incidents like the one in Arizona to more mainstream politically motivated stories about “bail reform” the bail industry is rarely portrayed in a factual way.  For example, when describing why jails are crowded, these stories claim that defendants are stuck in jail because they can’t afford a $3000 bond.  What they don’t explain is that a $3000 bond would only require that the defendant come up with $300 to be released.  Additionally, in today’s competitive bail market, with payment plans widely available, that defendant has the ability to be released for even less than that as long as they agree to a payment schedule.  Also, what these stories never mention are the countless studies that have been conducted around the topic of pretrial release that all prove that it is the most effective way to ensure a defendant’s appearance in court.  Not just one study, but dozens of studies, conducted by government entities, educational institutions and private parties, that all come to the same conclusion, bail works.  The only problem is that the effectiveness of bail doesn’t align with the “soft on crime”. “hug a thug” political narrative driving the bail reform movement today.  So instead of reading about the truth and the facts, we get the glorified drama and negative spin.

What many people don’t realize is that, love them or hate them, bail agents play an essential and effective role in the criminal justice system.  At no cost to taxpayers, they hold defendants accountable and help ensure justice is done for all parties involved.  Yes there might be incidents that portray the industry as “bad”, but the reality is that there is a lot more “good” done in one day by bail agents than you would ever think.

Imagine if we judged all professions in the world like we do the bail bond industry, just by the negative stories we see in the media.  Is it fair to say all teachers sleep with their students because a couple teachers did so?  Probably not.   Is it fair to say all professional athletes hit their wives because one did?  Probably not.  I think you get where I am going with this.

Bail is something that not a lot of people fully understand or have any experience with, but it is an industry that most will describe in a negative way based on what they see in the movies and read in the media.  It is time that people stop rushing to judgement when they hear the word “bail.”  Instead, they should make the effort to fully understand the role, the people and the effectiveness of the industry and base their judgement on the facts.  Because if people do take the time to understand this industry, I am confident that they will see how much the good does outweigh the bad and how important bail is to maintaining accountability and fairness in the American criminal justice system.

Monday, August 10, 2015

2015: A Good Year to be a Bad Guy

As the “tough on crime” mantra appears to becoming a thing of the past, one thing is for certain, 2015 will be one of the best years in modern history to be a “bad guy.”  Yes, all over the country, our criminal justice system is transitioning away from being tough on criminals to something more of a friend to criminals.  In other words, punishment and accountability are no longer the answers to preventing crime.  Instead, those concepts have been replaced with more politically correct soft on crime concepts of “more understanding” and “more caring” towards those who are accused of crimes.  Now proponents of this approach often say that they aren’t being soft on crime, but rather they are just being “smart on crime.”  While well intentioned I am sure, the reality is that these so called “smart on crime” approaches aren’t ending up with very “smart” results.  In this new proposed model of criminal justice, the real victim is no longer the person who had a crime committed against them, but rather the person who committed the crime.  No longer is it more important to seek justice for the victim, but rather it has become more important to seek justice for the criminal…a far cry from a once effective tough on crime approach and a far cry from something I would call “smart.”

Now many of you reading this blog are probably saying to yourself, “Brian, come on now, you really think that things are that bad?  Do people really care more about the bad guys than the good guys?”  My answer to that is both “no” and “yes.”  First, “no”…I don’t think that the majority of people want criminals to go unpunished and to be roaming our streets without oversight.  Second, that being said, yes…the evidence shows that the people we are letting out of jail are not good people and the proof is in the pudding.  Many of those in leadership positions around the country are making decisions about our criminal justice systems based on ideology and emotion.  And these decisions are not ones that are designed to improve the state of public safety in our communities, but rather improve the state of the criminals.

For example, in California, voters were recently duped by the state’s leadership to pass Proposition 47.  This proposition was called “The Safe Neighborhoods and Schools Act.”  To this day, I am still not sure what this proposition had to do with Schools or with Safe Neighborhoods.  What this proposition did do however is make being a bad guy in California an easier thing to be.  With county jails being overcrowded (a situation caused by a previous “smart on crime” bill AB109...the topic of another blog post) Proposition 47 was offered as a cure all to the growing problem.   But instead of curing the problem by expanding the capacity of our jail and prison systems to alleviate the overcrowding, Proposition 47 takes the opposite approach.  Proposition 47 waters down the description and classification of a long list of crimes and reduces (almost to the point of eliminating) the punishment for others.  Under Proposition 47, many crimes that were once deemed to be felonies are now being re-classified as only misdemeanors.  Those accused of these new misdemeanor crimes face very little repercussions for committing them.  In fact, most of the time, they are just let out of jail (sometimes just cited and released) with no real supervision and no assurance they will ever come back.  The best we get from a public safety standpoint is a promise by the person that they will return for court. And what happens if they don’t…pretty much nothing.  A warrant is issued and put into a growing pile of warrants for local law enforcement to deal with.  And trust me when I say that those committing crimes are not stupid.  They know that they don’t have to show up for court.  They know that no one will come and get them when they don’t.  And they know that if they do get caught they will just be released again.  Does that really sound like something that is “smart on crime”…does that sound like a formula for Safe Neighborhoods and Schools?

Once again, some of you are probably saying, come on Brian, people aren’t being let out of jail for real crimes.  They are probably only letting out those who have jaywalking tickets and unpaid parking tickets.  Unfortunately, people are getting out for what many consider, including me, “real crimes.”  Under Proposition 47 charges like heroin possession, Rohypnol (date rape drug) possession and cocaine possession are no longer felonies.  Forgetting the question of why someone would possess Rohypnol in the first place (if they weren’t planning on using it), the declassification of these types of charges from felonies to misdemeanors, can have serious consequences.  For example, someone who has been convicted of possessing these types of drugs and has now only been charged with a misdemeanor (or multiple misdemeanors) can still legally go out and buy a gun.  Yep, I said buy a gun.   But to be honest, they might not have to even buy one, because they can just go out and steal one (as long as it is valued under $950) and thanks to Proposition 47 face nothing but the equivalent of a parking ticket.

Proponents of this soft on crime approach will always tell you that it is too early to tell if it is working or not.  Unfortunately, for those of us that live in the community, it isn’t too early.  Property crimes have skyrocketed all over the state.  Auto break-ins and thefts are skyrocketing.  Jails are being re-filled with those that have been released and caught committing additional crimes only to be released again under the same lax supervision standards.  As I mentioned earlier, it is a good time to be a bad guy.

As someone who has worked in the criminal justice system for my entire professional life, I have seen a constant shift between tough on crime and soft on crime stances among our leadership and legislation.  However, to be honest, I have never seen such a monumental shift in one direction that I have seen today.  A shift towards the criminal being treated like the victim and in many cases treated better than the real victim.  Let’s just hope this current shift doesn’t last too long.  Let’s hope that communities raise their voices and demand that the public be protected and victims be supported. Because at the end of the day, crime should never pay and it should never be a good time to be a bad guy.

I look forward to your comments.

Wednesday, August 27, 2014

Justice Should be Measured in Efficacy as Opposed to Dollars...Especially When the Cost is Public Safety

Lately it seems like there have been a lot of stories out in the media about the cost of a bail bond.  The majority of these articles have taken the stance that the challenges in our criminal justice system are caused by the bail bond industry.  There are two main arguments that have surfaced as part of this debate, and as I will show you, both are flawed.

Argument number one is that the bail bond industry causes jail overcrowding.  It is the most common and probably most untrue talking point of those who oppose the commercial bail industry.  For years advocates of public sector pretrial release have used this argument to put a target on the commercial bail industry in the hopes of swaying public opinion and legislative support towards their own agenda.  They say people are languishing away in jail because they can’t afford a bail bond.  This statement couldn’t be farther away from the truth.  Here are the facts.  Jail overcrowding is not a problem stemming from the actions of the commercial bail industry.  It is a problem that is created through process inefficiencies within the court system.  Process inefficiencies that I believe could be solved but that is the topic of another blog.  If jail overcrowding was caused by people being unable to afford a bail bond than it would only make sense that in jurisdictions where there is no commercial bail, jail overcrowding wouldn’t exist.  Well I can confidently say that this premise is FALSE.  Just in the past 12 months, there has been numerous jail overcrowding stories out of states like Oregon, Wisconsin, Kentucky and Illinois.  All states that do not allow commercial bail.

The jail overcrowding argument also falls short when you look deeper into the make-up of the populations that are in the jail.  For example, back in 2012 the ACLU funded a study with the JFA Institute in Los Angeles County to determine why the jails were overcrowded.  The premise of the study was that 70% of people occupying the LA County jail were there in pretrial status and there because they couldn’t afford a bail bond.  Once the study broke down and identified who the individuals were that made up the jail population it became very clear that was not the case.  It was discovered that a large portion of the 70% were not there because they couldn’t afford bail, but rather because they were simply “not bailable.”   These defendants were being held in “pretrial status” but for a number of reasons including probation violations, immigration holds, too violent to be released, awaiting transfer to another jail, awaiting sentencing, etc.) and were not eligible for bail.  In fact, the 70% drops down to about 12% who are eligible to be released, and the majority of those people get out using a commercial bail bond.  So at this point, I think it is safe to assume that argument number one has been addressed.  Commercial bail does not cause jail overcrowding.

The second argument is almost the complete opposite of argument one (which is interesting because both arguments get used against the commercial bail industry simultaneously even though they contradict each other).  Many in the public sector pretrial community argue that bail bondsmen are releasing defendants for $0 or for very little money down and putting defendants on payment plans.  Unlike argument number one, there is nothing false about this statement.  Yes, the bail industry has evolved much like every other consumer business in this country.  Just as retailers like Best Buy offer big screen televisions on payment plans, when the economy got tough, the bail industry evolved to help consumers better afford their product by offering payment plans too.  Critics of the bail bond industry use this argument to say that the bail industry is undermining the criminal justice system by letting people out of jail for less than the judge intended them to have to pay.  While this argument might seem plausible on the surface, it is fundamentally flawed on many levels.  First, if we go back to argument number one, how can jails be overcrowded if bail agents are letting people go for $0.  In fact, while some bail agents do take payment plans, the face amount of the bond remains the same and is forfeited if the defendant misses court, as discussed below.  Second, the alternative options to commercial bail are public sector pretrial services or own recognizance release. These are both pretrial release options that let the defendant out of jail with $0 money.  That being said, even with $0 down, the commercial bail industry provides a higher level of oversight, accountability and management than any of these other forms of release.  And this fact has been proven time and time again over many decades by countless government, private and educational research studies.  All which show that commercial bail is the most effective form of release.

While the previous paragraphs are important to clarify and identify the faults of argument number two, and for purposes of this blog post even identify the faults of argument number one, there is an apparent lack of understanding of the concept of pretrial release overall and commercial bail.  This lack of understanding exists not only among those who oppose the industry, but by those who make decisions about our criminal justice system and our public safety.  The concept of bail has never been and should never be focused on what someone has to pay to be released.  While this statement may be shocking to some, any argument around the cost of a bail bond should be considered irrelevant.  The goal of pretrial release is about one thing and one thing only…ensuring that the defendant shows up for court.  The decision about the monetary value assigned to a bail by a judge is not assigned based on how much a defendant has to pay to get out, but rather how much a defendant or indemnitor (an contractually obligated third party) has to pay if they don’t show up for court. For some reason, the concept of bail and pretrial release has been shifted to the upfront cost of the product as opposed to the effectiveness of achieving the product’s purpose… which once again is getting defendants to show up for court.   What makes financially secured release so effective at assuring appearance is the way that it ties a third party to the release contract between the court and the defendant. This third party has a financial obligation (and incentive) to make sure that the defendant shows up for court. That financial obligation centers on the full amount of the bond.  It has nothing to do with what that third party paid for the insurance product (which is ultimately what a bail bond is) but rather what they will pay if the defendant defaults on the insurance policy…or doesn’t show up for court.

If we as a society are going to truly reform our criminal justice system, we need to look beyond ideology and focus on the facts.  When we talk about evidenced based pretrial practices, we must talk about all forms of release both unsecured and secured.  We must emphasize the things that truly make a difference like efficacy and what works best.  We need to understand and come to agreement on what method of pretrial release achieves the ultimate goal of what we want our criminal justice system to represent….things like order, accountability, fairness, compassion, and so much more.  All of these things can all be achieved if we first focus on what works.  The true cost of justice is not what you have to pay for it, but rather, the ultimate cost of what you lose when it comes to public safety.  Once we can all come together on these things, we can then begin to have meaningful and productive conversations not about bail reform but about criminal justice reform.   I look forward to hearing your comments.