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.