Remember my last blog about how our tax money was funding the Pretrial Justice Institute and how their primary objective is to eliminate commercial bonding? And remember how I said that they are compelled to justify this use of our tax money and that in order to do so they must come up with a reason why there should be no commercial bail? And remember how I said that if they could not present a legitimate reason to abolish commercial bail then they should get no more public funding? And how I said that they have tried not once, but three times, to come up with a reason for their existence and how they have failed miserably every time? And so I suggested that the "three strikes rule" should apply thus taking them out of the game (ineligible for any more tax money), and remember how I said that I was going to write an article about each "strike" against them?
Well, this is the first of those three articles, and it is about their first argument as to why there should be no more private sector commercial bail bond industry in this country.
This is about the first swing they took and how badly they missed the ball: THEY SAY THAT SINCE EVERYONE IS PRESUMED INNOCENT IT IS WRONG TO MAKE SOMEONE PUT UP SECURITY FOR THEIR BAIL. In other words, if somebody is innocent, how fair is it to make him arrange for a financially secured bond as a condition of his pretrial release? My goodness, if he is innocent how can we require that of him? They argue that this is terribly unfair. Therefore there should be no commercial bail.
Cute, isn't it? I suppose to them it is: the world's ugliest baby is pretty to its momma. There is only one thing wrong. Well, actually, two things wrong with their rationale.
One, they totally dismiss the basic condition of release pending trial: it must, according to the law, be done in such a manner as to reasonably ensure the appearance of the defendant as directed by the court. What do they do, then, with the fact that when fully secured release is put up against unsecured release in getting folks to court, secured release wins every time? What do they do with this information? They play ostrich; they stick their head in the sand and ignore it, play like it isn't there. Really, what else can they do? So this is one place they totally miss the ball; they ignore what bail is really all about in the first place. I can give them some good law on the subject, but I really don't think they are interested in knowing what that law says, they have been running from it as hard as they can for years.
The second thing wrong with their claim that if a person is presumed innocent they should not have to secure their release pending trial is that they have badly misunderstood the presumption of innocence doctrine from the get go. You see, presumption of innocence has nothing to do with arrest, jailing or bail. It just simply doesn't. In fact, at arrest, book in and bail setting the defendant is presumed guilty. What's that? Yes, it's true. He is presumed guilty. The presumption of innocence is largely symbolic. The reality is that no defendant would ever be jailed in the first place unless somebody - the crime victim, the arresting officer and the witnesses - believed that the defendant was guilty of a crime.
That is exactly what "probable cause" is all about. The best definition of probable cause is: "a reasonable belief that a person has committed a crime."
So the defendant, under probable cause, is arrested, jailed and has bail set, under the presumption that he did the deed. And then there is the trial, and the trial is when the presumption of innocence kicks in. He is not presumed innocent when he steps into the jail, he is presumed innocent when he sets first foot into the court room. And what does it mean? It means that he does not have to put on one shred of evidence to prove his innocence but the government must put on enough evidence to prove to the jury that he is guilty beyond a reasonable doubt. Presumption of innocence is not about arrest, jail or bail. It is all about who has the burden of proof at trial.
But if this is true (and it is), then they swung and missed when the ball left the pitcher's hand. They whiffed! They didn't even get close. Commercial bail violates the presumption of innocence? Wrong! STRIKE ONE!
So now you know. They cannot justify their existence (their use of federal tax money to eliminate the bail bonding business) by arguing presumption of innocence. As they say in deep East Texas where I was raised: "That old dog just won't hunt".
Remember what I said my old law school professor taught us? "If you've got the law, beat em with the law. If you don't have the law, but you've got the facts then beat em on the facts. And if you don't have the law or the facts, confuse em."
Well, they flat missed on the law with their presumption of innocence business, so then they tried to get us on the facts. But that's the next article. Stay tuned.
*If you would like to receive a printed or an electronic version of the entire blog series, please email us at email@example.com.
Jerry Watson, Chief Legal Officer of AIA, blogging about the legislative side of the bail bond industry. AIA (Allegheny Casualty, International Fidelity and Associated Bond) is the largest and oldest bail bond insurance company in the nation.
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- Behind the Paper with Jerry Watson
- Jerry Watson serves as Chief Legal Officer to AIA, Senior Vice-President and Legal Counsel, Bail, at IFIC. He is the immediate past Chairman of the Private Enterprise Board of Directors of the American Legislative Exchange Council (ALEC) – America’s largest bi-partisan state legislator member organization on whose board he has represented the commercial bail industry for the past 15 years. He has also served as General Counsel of the American Bail Coalition since its founding and is a member of the Bail Advisory Council of the Surety and Fidelity Association of America (SFAA). His undergraduate and law degrees are from Baylor University and he is a graduate of the National College of Criminal Defense Attorneys and Public Defenders. He has testified as an expert on bail in various state and federal cases, among them being the country’s largest bail related damage suits. In Jerry’s 42 years in the bail industry, always as an attorney, he has represented local retail agents, general agencies, insurance companies and insurance companies’ trade associations before state and federal courts and regulatory agencies.
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