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.

Monday, August 4, 2014

Supreme Support of Commercial Bail

With the overwhelming amount of “bail reform” related media coverage coming out of New Jersey recently it has been pretty easy to miss some pretty substantial bail industry related news coverage coming out of the rest of the country.  Most notably have been the recent stories out of both Ohio and Washington State.

One could say that July was a good month for public safety and support for effective criminal justice reform.  First in Ohio, the Ohio Supreme Court ruled that it was unconstitutional for the courts to require that defendants only pay bail by paying 10% cash to the court.  It was determined that the court must accept surety bonds as a form of release if the consumer chooses to utilize one.  Additionally, just last week, the Supreme Court in Washington State came down with a similar ruling stating that the current state constitution allows for bail to be paid by sufficient surety.  With this ruling, a court cannot require only one form of 10% cash, but must allow all forms of “sufficient surety” including a commercial bail bond.

Why are these two decisions so important?  Well, for the first time, a precedent has been set by the highest court in two different states that establish commercial bail as a necessary and required form of pretrial release.  These decisions are supported by decades upon decades of research that prove the effectiveness of financially secured release through a commercial bail bond as the most effective form of pretrial release.  The research done on the subject of pretrial release has been both broad and deep in terms of its source and purpose.  From research funded by government agencies to research conducted by private industry groups to research conducted by leading educational institutions, the results have all been the same.  Pretrial release through a financially secured commercial bail bond is not only the most effective way to ensure a defendants appearance at court, but also the most effective way to encourage less recidivistic behavior while out on release.  And all of these benefits come with zero cost to taxpayers.

I am hopeful that these two big Supreme Court decisions signal a change in how legislators and the public perceive and understand the role of commercial bail in the criminal justice system.  Putting aside all the misperceptions and over the top characters generated by Hollywood and the media, it is reassuring to see key decision makers at the highest of state levels recognize and support an industry that does so much in guaranteeing the rights of all who are involved.  From the rights of defendants, to the rights of the victim to the rights of the public at large, commercial bail is the one entity that maintains, trust, accountability and promise in the complex system of criminal justice.  I look forward to your comments.

Monday, June 16, 2014

Remove “Justice” From Criminal Justice…and What You Have Left is Just Criminal

Jail overcrowding is a topic that has been in the news a lot lately, especially in California.  Thanks mostly to AB109, Governor Brown’s prison realignment plan, there has been a massive influx of thousands of convicted state prisoners that have been moved from state prisons and placed in local county jails.  While on the surface this solution might seem logical, move the people where the space is, the reality is that it is not logical at all. What happens when you place state prisoners in county jails is that the county jails become crowded and the pretrial populations that these facilities were designed to handle in the first place are now kicked to the streets for lack of space.  Why does this matter? It matters because in doing so, we send a message to those committing crimes that if they commit a crime in California and it is not a violent, non-serious crime, then they will get the equivalent of a slap on the wrist and put back out on the streets with no accountability or oversight.  Just check out this latest report out of Roseville, California where criminals are being released and rearrested within days only to be released again.

Original article: Local Law Enforcement Frustrated with Non-Stop Inmate Release

So what is the solution to this problem?  As you can imagine, the answer to such a complex problem such as this isn’t simply one thing, but rather it must consist of a range of solutions that include both public and private solutions.  One of these solutions is the private commercial bail industry that has been playing a vital role in California’s criminal justice system for close to a century.  Not only does the commercial bail industry facilitate the management of pretrial defendants in California’s criminal justice system, it does so at $0 cost to the state and taxpayer.  In fact, based on countless research studies conducted by the Department of Justice and several prestigious universities across the country, the commercial bail industry has been shown to be the most effective form of releasing defendants pretrial and ensuring their appearance in court.  Based on those facts, one can only assume that the commercial bail industry would be a big consideration as one of the solutions to more effectively and efficiently release these pretrial populations from the county jails and ensure that those defendants not only go to court, but stay out of trouble in the meantime.  Based on those facts, one can only assume that having someone accountable and financially on the hook for their behavior is a better option than just releasing them on their own (which the news story referenced above clearly shows does not work).  Unfortunately, commercial bail is not being looked at as a potential solution.

Why?  Because still, in the face of all those facts, there are those who refuse to accept financially secured release as a viable pretrial release option.  In the face of all those facts there are still those that push only for more public sector resources and programs which cost valuable taxpayer dollars that the state doesn't have. Isn't it time that our leadership stop ignoring the facts and the realities of the ineffectiveness and unsustainable costs associated with public sector pretrial release programs and come to the table to discuss real solutions; Solutions that incorporate the best of both the private and public sectors working together.  Only time will tell.

Thursday, May 8, 2014

We Don't Need No Stinking Truth...The Unfortunate Mantra of the Public Sector Pretrial Movement

A couple weeks back I wrote a blog on a recent study released by the National Institute of Corrections.  The focus of the study was an assessment of the New Orleans Pretrial Services Program.  As I pointed out in my previous blog post, An Assessment of the New Orleans Pretrial Services Program is no Assessment at All, the findings from this study raised many questions in my mind, but none more revealing than the following quote below from the report:

“The current verification process is time consuming and is contributing to the staffing demands and length of detention time and is likely to not have an impact on a defendant’s pretrial success if released from custody.”

If you are someone that has paid any attention to the public sector/private sector pretrial release debate that has been going on for the past several years, then you are probably rereading the statement above over and over in disbelief.  I know that because that is exactly what I did.  And to be honest, this statement is extremely enlightening as a reason for why jails are overcrowded and why throwing more tax dollars at a solution is ultimately inefficient and ineffective.

Verification of a defendant’s information is not only necessary for the pretrial process, but absolutely essential.  Ask any bail bond agent, and they will without hesitation agree.  The accuracy of the information you collect from the defendant is directly related to their potential to show up and your ability to retrieve them should they not.  However, according to the NIC’s report, validating this information is not important and instead time consuming, expensive and ineffective.  It is like saying that building a house with nails takes too much time, is expensive and ultimately doesn’t matter in the quality of the end product.  So instead, don’t use nails and just put the wood together and hope it stays upright.  As we all know, this is a ridiculous statement.  Verifying a defendant’s information is vital to fully understanding and managing the risk that every defendant poses…period.

Additionally, for as long as I can remember, the public sector pretrial community has pointed the finger at the commercial bail industry as the cause of jail overcrowding.  This statement is further proof of that misguided accusation’s fallacy while at the same time an eye opening revelation of public sector pretrial’s role in jail overcrowding… “The current verification process is time consuming and is contributing to…length of detention time.” It is unbelievable and extremely telling to me that the NIC report would not only make this claim, but make it in a way that they see is a positive statement in support of more public sector pretrial services.

The statement above also sheds light on another false claim that has been made by public sector pretrial for many years.  That is, that public sector pretrial service programs save money because they let defendants out and save the county the cost of a jail bed.  What they never point out is that most of the costs of running a jail are fixed costs and are not reduced by simply letting a defendant out.  That cost savings is almost nominal.

The compelling part of this statement is that it readily admits that these pretrial programs require more staffing to run them, which means more money.  So you are releasing a defendant to supposedly save money, but hiring multiple employees to manage that process for a net loss.  By the way, just for the record, don’t even get me started on the true cost of these pretrial programs…that is a whole other blog.  Eric Granof, recently wrote about that cost in an op-ed for the crime report.

So let me recap.  The conclusions of the NIC report on New Orleans Pretrial Services Program state the following: First, verifying a defendant’s information is NOT important and takes too much time which leads to jail overcrowding.  Second, public sector pretrial programs are costly because they must hire more staff if they are going to do an effective job thus eliminating the mythical savings generated from a fixed cost of a jail bed.  At the end of the day, I haven’t ever read a report written by a proponent of public sector pretrial release program that provided a better reason for using commercial bail than this one.  All I can say is thank you NIC for shedding some light on some important failures of public sector pretrial services.  I look forward to hearing your comments.

Wednesday, April 30, 2014

Public Sector Pretrial Release: When it Comes to FREE Bail, Bigger isn’t Better

Every week, I make and receive phone calls from agents all over the country sharing the challenges and opportunities they face on a daily basis.  Recently one of the most common issues I have heard from agents is the increase in competition they face.  Why that doesn’t sound like anything too new or interesting, it actually is.  Because the competitor most agents are talking about are not other bail bond agents, but rather public sector pretrial release agencies.

Now don’t get me wrong, this is not a blog post about the poor bail agent losing business and making less money.  Rather, this is a blog post about tax dollars being spent on an inferior product.  And for the record, these are tax dollars that don’t have to be spent.  Let me explain.

Last week I spoke with a bail agent in Southern California that had posted a bond for a client.  The agent had spent several hours working closely with the family to put together a rock solid bond.  After waiting close to 19 hours for the defendant to be released from custody, the agent finally called the clerk at the jail for another update.  It was at this point that the clerk informed her that she needed to come and pick up the bond.  What had apparently happened is the defendant had been released through a public sector pretrial release program even though they had already obtained release through a bail agent.

Another agent told me a story how a few weeks back they were with a family on the way to the jail to release their son.   The father’s cell phone rang and it was someone from the public sector pretrial services office calling to tell them not to get a bail bond but rather wait and see if their son could be released through their program for FREE.  Yes…this really happened…and it is not the first time I have heard this type of story.

While most people might not see the issue here, there is a pretty big one.  Public sector pretrial release programs were designed back in the 1960’s for one purpose…and that is to assist in the release of individuals who were deemed indigent or had special needs (by the way, a concept that the commercial bail industry is fully in support of).  So if public sector (taxpayer funded) pretrial release programs were designed for the indigent, than why are they releasing someone who had already been able to financially secure their release?  This person was not indigent.

Once again, this is not about a bail bond agent losing out on a bond.  It is about a complete and utter misuse of taxpayer money with little or no thought put towards public safety and the ultimate purpose of pretrial release in the first place, which is to “ensure appearance in court.”  Every study ever done on the subject of pretrial release shows that financially secured release through a commercial bail bond is the MOST effective form of ensuring appearance and in the process ensuring accountability.

So the question becomes then, why are defendants who have already secured release with a bail bond agent, still being let out for FREE through public sector programs?  Why are public sector pretrial services employees calling the families of the defendant telling them not to get a commercial bail bond? In times when budgets are slim and public safety is at risk, why are our elected officials allowing our tax dollars to fund and expand these FREE bail programs beyond their intended use when they have been proven time and time again to be ineffective?  Why are defendants being told to wait in jail longer (which costs money) instead of bailing out sooner with a commercial bail bond?  These are all troubling and very good questions and ones that every taxpayer should be asking their county supervisors and local government leaders.   Below is a list of questions that you can send to your local officials. If they can’t answer them, you should demand that they do, because the answers will most likely open their eyes to misguided and ineffective use of public sector pretrial programs.  I look forward to your comments.

  1. How many defendants a month are released through your county’s pretrial release program?
  2. How many of those defendants were deemed indigent?
  3. How many of those defendants made all of their court appearances?
  4. How many committed more crime while they were being supervised by a public sector pretrial program?
  5. What happens when someone doesn't show up for court?  Who goes and gets them to return?
  6. How much money does your county spend on its pretrial program?
  7. How much money does your county spend when defendants fail to appear? 
  8. How much time does it take for a defendant to secure a commercial bail bond and be released?
  9. How much time does it take for a defendant to be released through a public sector pretrial release program?

I look forward to hearing your comments.

Thursday, March 13, 2014

An Assessment of the New Orleans Pretrial Services Program is No Assessment at All

I was recently forwarded a new study put out by the National Institute of Corrections.  The study was authored by Tara Boh Klute and Lori Eville and was titled “An Assessment of the New Orleans Pretrial Services Program.”  As I read this study and thought about its purpose more questions were being raised in my mind than answered.  That being said, below are the three big questions and issues that surface for me in this assessment report.

First, if this report is supposed to be an assessment of the VERA Institute’s efforts in managing the New Orleans pretrial services program than why is the National Institute of Corrections conducting the assessment?  Doesn’t the NIC focus on prison populations?   I would think that managing a post-conviction prison population is very different than managing a pre-trial jail population.  Comparing the two is like comparing apples and oranges.  It is like asking your gardener to assess how well your house is built.  You would think that an organization looking to assess a pretrial release program would at minimum have expertise and experience in what they were trying to assess.  That is very obviously not the case here.

Second, in order for an assessment to be a true assessment you must have a set of meaningful and “relevant” criteria in which you are using to measure the success or failure of what you are assessing.  Now, this study does have a set of criteria which it is using to measure the success of the VERA pretrial program, the problem however, is that the criteria being used are meaningless and irrelevant to actually measuring the success or effectiveness of the program.  This so called assessment is measuring whether or not VERA’s pretrial release program meets the criteria of the National Association of Pretrial Services Programs.  In other words, they are measuring themselves against their own philosophical standards as opposed to truly measuring their effectiveness in getting defendants back to court.  Doing a study that says that VERA is doing a great job at following NAPSA’s standards is meaningless if following NAPSA’s standards for pretrial release does nothing to guarantee a defendant’s appearance in court…and by the way, they don’t.   In fact, one doesn’t have to look hard to find a study that shows that public sector pretrial service programs are the least effective way to get a defendant back to court.  Conducting an assessment in this way would be like grading a student’s test based on whether he brought a pencil and paper to the test as opposed to whether he got the answers correct.

Lastly, this so called assessment in my opinion is a complete and utter waste of tax dollars.  The city of New Orleans has spent hundreds of thousands of taxpayer dollars on the VERA Institute and its ineffective pretrial release program.  What makes this wasteful use of tax dollars even more egregious is that there is a more effective, less expensive private sector option that guarantees its performance to the courts.  That option, of course, is commercial bail.  It makes no sense at all for the NIC to assess the effectiveness of a program such as this.  The City of New Orleans and its taxpaying residents are the ones who have paid for VERA and its failed programs.  They should be the ones demanding results and objective measurement not politically driven meaningless assessments.  When you hire someone to do a job for you, do you assess how good the job is by how well the vendor did at meeting his own personal standards or do you measure success by how well the vendor did at meeting your standards?  The people of New Orleans deserve better.  They deserve to see who the VERA institute is letting out of jail for FREE.  They deserve to see how these individuals are being assessed and ranked by VERA.  They deserve to see VERA’s true measure of success…how many defendants are showing up for court and how many are committing crimes while out on FREE release.  These are the criteria that matter; these are the criteria that should be assessed.

It is time that the public sector starts meeting the same criteria and standards that the private sector has to meet.  Instead of paying taxpayer dollars to conduct a meaningless assessment that has no purpose other than to pat an ineffective organization on the back for “trying their best” as opposed to “getting the job done” is wasteful and worse, shameful.

Remember that I am only scratching the surface here.  There is much more to talk about with this assessment, but that will be left for another blog post.  I look forward to your comments.  Below is a link to the assessment.

An Assessment of New Orleans Pretrial Services

Thursday, March 6, 2014

Pretrial Risk Assessment: Computers vs. Man, Fantasy vs. Reality

As technology has advanced over the years, many debates and questions have been asked around the topic of machine versus man.  These questions include things like can computers do a task better than a man? Can computers make thoughtful decisions that involve experience and emotion?  Can man be as effective and as accurate as a computer without the ability to process and analyze millions of data points?  While no one has been able to completely answer these questions, and trust me when I say that I do not plan on answering them in this blog post, I will, however, give my thoughts on the current man vs. machine debate that is happening in the criminal justice system.

A few weeks back I watched a “Ted Talk” video about risk assessment.  In this video, the speaker talked about risk assessments and their likeness to an approach used by the professional baseball team the Oakland Athletics called “moneyball.”  The moneyball philosophy (just in case you never saw the Hollywood movie made on the topic) is based on a deep analysis of data and statistics.  The theory is that you can use this data to tell you which players you should draft and/or acquire based on their statistical performance in certain situations.  For example, should you pay millions of dollars for a big name superstar that hits 50 home runs a year or do you spend a few hundred thousand dollars on a lesser known player that consistently hits for average with runners in scoring position.  This analytical approach to baseball has been very beneficial to the Oakland A’s organization allowing them to compete with teams that have much higher salaries and cost structures.

The question that I would like to raise is does this type of “moneyball” statistical analysis or “risk assessment” as it is referred to in the criminal justice system work like it does in baseball?  Is it a fair analysis to equate the two together and through the transitive property assume that both are effective?  I would argue no, it is not the same thing.

The concept of pretrial release is not something that can be distilled down to common statistics across a broad range of different environments.  Every defendant is different; every state is different; every county is different; every criminal act is different; and every reason a person commits a crime in the first place is different.  Criminal Justice is not that simple.  Additionally, the people who make the ultimate decisions in the criminal justice system are judges.  And judges don’t just become judges; they earn a judgeship through experience and practice.  Sitting in front of thousands of unique defendants is more valuable to understanding how criminals think and act than just looking at questionnaires and statistics.

The same goes for the bail bond industry.  Bail bond agents deal with thousands upon thousands of defendants.   These are defendants that they understand and are familiar with.  Why?  Because they have grown up and live in the communities that they serve.  They know the people; they know the families; they know the employers and the businesses.  They have a world of local knowledge and insight that no computer program or public sector pretrial risk assessment can quantify and make sense of.  Call it gut or call it experience, but the bail bond industry brings an intangible component to their own decision making process that is not merely about risk assessment but rather about something more important “risk management.”  Ultimately when a bail agent decides to financially secure a defendant’s release, they are focused on managing the risk of the defendant and ensuring they show up for court as opposed to just assessing the risk and trying to play a guessing game of whether that person will show up or commit another crime.

Based on the uniqueness of the criminal justice from locality to locality and the reality of the pretrial world, how can, as the speaker in the video explains, a computer program that spits out a 7 question risk assessment be enough information to accurately claim that a defendant is dangerous to the community and should not be let out of jail pending his trial.  In my opinion it can’t for the very reasons I have mentioned above.  Computers are not people.  They are tools that people use to make a complex task easier.  In the world of baseball that might work.  In the world of the criminal justice system and pretrial release, where public safety is at stake, I think that these computer modeled risk assessments are a shiny new toy for the public sector pretrial release community to rally around.  Why, because they have nothing else.

If statistics and data are so important, than why doesn't the public sector pretrial community just look at the data that is already in existence.  For example, there is plenty of data on pretrial release successes and failures that have been published by the Bureau of Justice Statistics.  The problem is that data doesn’t support pretrial release through a publicly funded pretrial release agency, but rather shows that release through a financially secured commercial bail bond is the most effective way to get defendants back to court. And when that happens, we all know that the public is protected, victims get a chance at justice and the system has accountability.

Summing things up, should the criminal justice system rely on a moneyball approach to pretrial release?  I guess the answer to that question is that the jury is still out, but as far as I know, the Oakland A’s still haven’t won a championship and public sector pretrial release still hasn't outperformed private sector financially secure release…so you decide. I look forward to your comments.

Friday, February 14, 2014

The Unanswered Question of Bail Reform: Who Pays?

As a follow up to my last blog post, The Bail Bond Industry: A Scapegoat of Convenience, I wanted to focus this blog post on the question that no one ever seems to want to bring up in the “Bail Reform” discussion.  And that question is…Who pays? Whether it is the state of New Jersey wanting to expand its pretrial services agencies or Maryland’s recent efforts at Bail Reform, public sector pretrial release proponents never seem to be concerned about the real elephant in the room…the money and where will it come from.

The public sector pretrial community for years has touted the success of the Washington D.C. pretrial services agency.  It is the case study that they believe is the perfect pretrial model for success and the blueprint that all counties in the U.S should follow.  However, while they tout the amazing success of the program, there is one topic that they do not typically talk about…and that is the money…or as I like to say the most important question you can ask, WHO PAYS?  The DC pretrial program monitors 4400 defendants at a whopping cost of $59 million.  That is $13,409 per defendant that is spent to supervise defendants and ensure they show up for court (BTW, the commercial bail industry does the same thing at no cost to the taxpayer).  Additionally, when a defendant fails to appear, the DC pretrial office has the luxury of having the US Marshall Service at their disposal to go after fugitives.  BTW, just for the record the success rate of the DCPSA is 88%.  That means 12% of defendants never appear for court.  Now compare that to the commercial bail industry which has a 98% success rate.  It is really amazing to think that a 12% failure rate is considered a success in the public sector.  Just imagine if your airline only got to its destination 88% of the time, or your bank only got your account balance right 88% of the time…would that be acceptable.  And just for the record, the person that funds the Washington DC pretrial program…you, the US Taxpayer.

Now in order for you to fully understand the magnitude of the dollars we are talking about, let me put this in perspective.  If you were to apply the $13,409 per defendant to a typical metropolitan county in the US that doesn’t serve 4400 defendants, but rather 20,000 defendants a year that cost balloons to over $268,180,000 to provide ONE typical metropolitan county in the US a DC like pretrial services agency (FYI…there are over 3000 counties in the US).  And remember that this typical local county won’t have the resources of the US Marshal Service available to help it track down those defendants that fail to appear. They will instead have to rely on an already overburdened and under resourced local law enforcement agency.  What this does is create significant lapses in public safety.  Either police have to put aside regular duties to pursue a growing number of fugitive warrants, or they have to ignore the fugitive warrants and go about their regular law enforcement duties to protect the public.  Whatever they decide to do, public safety is impacted in a negative way.  And please don’t misunderstand my point.  It is not law enforcements fault. The fault lies with an ineffective public sector program that costs counties money they don’t have and requires resources that are already overburdened.  Additionally, these public sector programs do not have the proper incentives and levels of accountability to perform at the highest level possible as does the private sector (i.e. the commercial bail industry). Most importantly, let’s not forget that the commercial bail bond industry is not only the most effective form of pretrial release (proven time and time again by countless research studies and academic papers), but also costs the county $0.  And this is a talking point that never seems to come up in the discussion of “bail reform.”

In a time where local states and county governments are facing tougher and tougher fiscal challenges, the idea of replacing private sector commercial bail with public sector, taxpayer funded pretrial agencies and diversion programs is not only a poor public safety decision, but more importantly also a fiscally irresponsible one.

What the bail reform movement needs is less pie in the sky ideology, but rather more realistic, evidenced based SOLUTIONS to the problem.  Proposing bigger pretrial service programs with bigger budgets doesn’t solve jail overcrowding.  Convincing decision makers to get rid of a long standing, effective private sector business like the bail bond industry does not rehabilitate career criminals.  Letting more so called “non-violent” offenders out of jail with no supervision and no accountability does not increase public safety.  Instead all these types of ideological recommendations do is exacerbate the problems in the system and deflect decision makers from the real problems.   And please know that I feel the same way towards more commercial bail.  Bail is not the be-all end-all answer to the problems facing our criminal justice system.  I am convinced that the answer does not lie with one solution or the other.  Rather, I believe that the answer involves all aspects of the criminal justice system to work together.  The private sector doing what it does well and the public sector doing what it does well.  But to date, instead of trying to solve the real problems of the system, the public sector pretrial community through its “Bail Reform” movement is putting its efforts into creating market share instead of solutions.

It is time for counties around the country to start approaching the ills of the criminal justice system with a comprehensive approach that truly addresses the roots of the cause of the problems it is facing.  Additionally, our decision makers need to start turning to those in the private sector that have the knowledge and experience to help solve some of these challenges in smart, fiscally responsible ways.

I look forward to your comments.

Friday, February 7, 2014

The Bail Bond Industry: A Scapegoat of Convenience

A couple weeks ago I read an article out of New Jersey talking about the ills of the criminal justice system and the need for bail reform.  The article started with telling the story of a defendant who was released on a reduced bail amount and has since been rearrested for another violent crime.  The article then goes on to talk about the many ills of the criminal justice system all couched under the umbrella of the need for “Bail Reform.” The issues identified in the article were: Jails being overcrowded, inmates being warehoused instead of rehabilitated, bail bond agents writing bail with payment plans, and so on.  Not only did the article discuss these issues as a need for bail reform but also put the blame for them squarely on the commercial bail industry.  After reading the article a couple more times, I felt myself getting more agitated and confused.  I kept saying to myself what does this have to do with the bail industry?  What have we done to have so much hate and resentment thrown towards our industry by those in the public sector? Why are we being held responsible for the criminal justice system falling short? The only answer, the bail industry was being made a scapegoat of convenience.

In order to try and rationalize things a bit, I started to breakdown the potential issues one by one and see if this overzealous criticism and finger pointing was deserved or really as misguided as I thought.  First, I looked at jail overcrowding.  Are people locked up in jail, because they can’t afford a bail bond?  Well, if you read into the article a bit you can see that the author is actually says that people are getting out “too easy” with bail through payment plans.  But even without payment plans, the concept behind bail is to facilitate the release or make it more attainable for families who can’t afford the full amount of the bail.  By assuming part of the financial risk the bail agent not only makes it easier for families to get their loved ones home, but also guarantee to the court that the defendant will show up for ALL court appearances once they are out.   So to say that bail causes jail overcrowding couldn't be further from the truth.  Also, media coverage has shown us that states like Kentucky, Illinois, Oregon and Wisconsin all have jail overcrowding issues.  The interesting point there is that none of those states have commercial bail.  So I think we can cross that off the list.

Next, I looked at the issue of warehousing versus rehabilitation.  I tried to figure out where commercial bail plays a role in keeping convicted felons warehoused in jails and prisons instead of rehabilitating them.  This one was actually pretty easy to figure out.  Bail has nothing to do with warehousing or rehabilitation.  Bail is about “appearance.”  When a judge makes the determination that a defendant is eligible for pretrial release and sets a bail amount, it becomes the bail agent’s responsibility to ensure that those defendants that they do release on bail show up for ALL of their court appearances.  That is it.  We guarantee “appearance.”  To say that the commercial bail industry has failed to do their job and has caused the current problems in the system is not only a red herring, but also grossly misleading and accusatory.  The concept of bail is and always has been about getting defendants to court so that they could be held accountable.  And in the history of our modern day criminal justice system, there has yet to be a better form of ensuring a defendant’s appearance than a financially secured bond obtained through a commercial bail agent.  Every legitimate study, every independent research report and countless academic articles written on the subject of “pretrial release effectiveness” undeniably support this claim.

So if the commercial bail industry is not the problem than what is?  And then it hit me.  That question is not only the fleeting one, but also the answer.  No one knows what the problem is.  Without trying to truly get a snap shot of the make-up of the pretrial populations and understand the wide range of reasons why people are there, you can’t come up with a real solution to the problem.  And you definitely cannot accurately identify what the problem is in the first place. Additionally, if this is the case and the problem is so clearly undefined as it appears to be, than why are states like New Jersey proposing “Bail Reform” in the first place?  Why are decision makers proposing to throw millions of dollars of taxpayer funds at a problem that they do not know the actual cause or the most effective solution? I think these are all very important questions and ones that need to be answered by those looking to reform the criminal justice system and abolish commercial bail.  (In fact, this topic would make a pretty interesting blog post…hint, hint).

If we want to truly solve the ills of the criminal justice system there needs to be full and transparent cooperation between the public and private sector pretrial community.  In other words, we have to stop creating scapegoats and pointing fingers at each other and instead start solving problems with each other.The commercial bail industry is NOT THE PROBLEM in the criminal justice system.  Anyone who thinks so is not trying to solve the problem, but rather trying to discredit a legitimate and effective industry for their own ideological agenda and gain. If all the stakeholders are able to come together (including the commercial bail industry), I am extremely confident that together we could not only solve some of these challenges, but also strike a deeper balance between the social justice and criminal justice sides of the equation that everyone desires.  In this way, we can ensure that all parties are contributing to the solution in the best way possible and that ultimately both victims and defendants are getting their day in court, justice is being served and accountability is being maintained for us all.  I look forward to reading your comments.