Tuesday, July 26, 2011

Pretrial Justice Institute - Strike Two: Performance Comparison

In my last article on the "Three Strikes And You're Out Pretrial Justice Institute!" I wrote about their first miss: their claim that commercial bail should be done away with because it violates the presumption of innocence doctrine.  We very clearly showed the fallacy of their claim, thereby demonstrating that their first attempt to justify the basis of their existence ( to use our federal tax money to get rid of commercial bail ), so that was strike one.  Our objective is to show that they cannot come up with one single sound reason why commercial bail should be abolished.  And since getting that done is what they are all about ( and why they get our tax dollars ), if after their three main attempts they still fail, shouldn't the government stop giving them our money?  I mean, if they are going to get our money and use it to put us out of business, and if they cannot show why we should not be left in business, then should they keep getting our money? We think not.  If they swing three times and miss every time, should they not be out of the game? We think so.

This article then is about how they missed in their second attempt: their claim that pretrial services agencies perform just as well, if not better, than commercial bail in getting defendants back to court.  Their argument of course is that if they have a better appearance rate, then who needs commercial bail?

Well, let's examine that proposition.  Do they outperform our industry in getting persons to court? Not if the numbers mean anything they don't.  Every major study ever done on that subject shows that fully financially secured bail ( our kind ) dramatically outperforms unsecured bail ( their kind ). 

The largest and most extensive of these studies has been the one which used to be done every two years by the Federal Bureau Of Justice Statistics ( BJS ) which is an arm of the U.S. Department  Of Justice.  BJS studied, among other things, the appearance rates of fifty five thousand state case felons from the country's seventy five most populous urban counties.  They did this every two years for a long time.  And every two years when their findings were published the answer was always the same.  Secured release wins again.

Guess what happened. After PJI started getting our tax money from the Bureau Of Justice Assistance ( BJA ), which is yet another wing of the U.S. Justice Department, and PJI  saw that we were using these BJS numbers to show everybody that commercial bail skunked pretrial service agencies when it comes to getting defendants to court, they went whining to the head of BJA.  Can't you just hear it: "Hey! You guys are giving us this tax money and we are trying to put small business bail bond women and men out of operation with it and another of your departments is giving them ammunition to show that they do a better job than the local taxpayer funded free bail pretrial service agencies. How are we gonna win if that keeps up?"

You will not believe this. Well, considering, maybe you will.  BJS, which had been saying for years and years that secured pretrial releases outperformed, big time, unsecured releases in getting persons to court, now issued a "bulletin", and you have probably already figured out what it said.  It said that these study reports were not intended to indicate that one release method was any better than another.  And now those studies are not being done anymore.  I mean, can you give us a break here for goodness sake? It’s bizarre, really.  The bulletin says that the research is for the benefit of researchers, students, bail agents, judges, public servants, etc.  but you cannot say what the research shows.  But that's OK.  The study reports are out there, and the numbers show what the numbers show.  And we keep using them. 

Here's one they can't stifle.  Just last year a study was done of the Houston, Texas pretrial services agency and an amazing thing was discovered.  That agency was supervising for reappearance about nine thousand cases where almost exactly half of them had court ordered surety bonds in addition to being assigned to pretrial services.  The other half did not have a surety bond.  The very same controls were employed on every case.  Those cases were reviewed and it was learned that the appearance rate for those on surety bond was twice as good ( 100 %  better ) than the unsecured cases.  You talk about the perfect Petrie dish for studying appearance rate comparisons. This was it, and we won again.  Hands down.

There are other studies from very credible scholars, and they all come out same way.  Commercial bail carries the day. Every single time. Call my office, or email your request, and we will be pleased to send you these proofs.

There is a line in an old Mary Chapin Carpenter song that says: "The cards may lie but the numbers never do."  And commercial bail has the numbers. Always.

So they swing and miss again. First strike: presumption of innocence.  Second strike: this one, the court appearance performance rate question. And they are still getting our tax money? Yep, but the third strike is coming up.

Next article: the third strike.  You will have it soon.

*If you would like to receive a printed or an electronic version of the entire blog series, please email us at communications@aiasurety.com

Tuesday, July 19, 2011

Pretrial Justice Institute: Strike One - The Presumption of Innocence

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 communications@aiasurety.com

Wednesday, July 6, 2011

Three Strike Rule for the Pretrial Justice Institute

The Pretrial Justice Institute (PJI), a federal taxpayer funded organization, in describing its mission, says, "PJI serves as the Service Director for the National Association of Pretrial Service Agencies (NAPSA). PJI supports the NAPSA Board of Directors initiatives."

NAPSA is a national organization comprised mostly of executives from various county pretrial release agencies across the country. These are local taxpayer funded operations that essentially promote "free bail bonds" to persons incarcerated upon suspicion of having committed a crime. Their avowed purpose is to replace the country's two hundred plus years old private sector bail bonding business with county government run stores.

Remember, PJI says that its purpose is to support the NAPSA Board's initiatives. Here are two of the Board's "Standards" adopted in October of 2004.

  • Standard 1.4(a): Each jurisdiction should adopt procedures designed to promote the release of defendants on personal recognizance (that is, merely upon their promise that they will come back for their trial). Parenthesis mine. 
  • Standard 1.4(d): Compensated sureties (the private sector bail bonding business) should be abolished. Parenthesis mine.
The simple and undeniable truth is, therefore, that PJI lives off of our federal tax dollars so that it can go about the country and lobby for the eradication of the private sector business of commercial bail bonding, a business that has been a proven asset to our country's criminal justice system from it's very founding. And the problem is that, try as they may, PJI cannot justify the existence of the program they say should replace commercial bail.

Well, here's a thought: why not apply the three strike rule to PJI? Everybody knows that under this rule, whether it applies to baseball or the commission of crimes, when you make three serious misses you are taken out of the game. So if PJI, after three attempts to do so, cannot explain why its recommendations are sound, why should it continue to get our tax money? Why should it not, like any other three time offender, be removed from the game? I am suggesting that it should, and I propose to make my case in a four part series of short articles to be posted on this blog.

This introduction will be the first article followed by three more, each dealing in turn with a separate swing and miss by PJI in its failed attempts to support its cause which is to reduce private business and grow the government.

Just as a preview: of what do PJI's three strikes consist? The best short answer I can give is to acquaint the reader with advice given by Mr. John Wilson, my old Remedies course professor in law school 45 years ago. Mr. Wilson told us: "You need to remember the three ways to beat your opponent. One, if you have the law, beat em on the law. And if you don't have the law, but you have the facts, then beat em on the facts. And if you don't have either the law or the facts, confuse em."

This is precisely the approach PJI has used as it has taken its show on the road from county to county trying to convince local government leaders to reduce commercial bail and expand the use of county taxpayer funded pretrial service agencies. It tried the law by suggesting that to make a person obtain the services of a professional bail bond writer violates the presumption of innocence. Wrong there, so they tried to argue facts by saying pretrial service agencies outperform commercial bail. Failed there too, so then they, in desperation, tried to confuse their audience with their "evidence based flight risk analysis" claptrap. That didn’t work either.

So, in the next three articles I will take each of these failed PJI attempts up one by one in the above order. Stay tuned. And, of course, feel free to offer your responses. Communication is the solvent and dialogue is good for the soul.

*If you would like to receive a printed or an electronic version of the entire blog series, please email us at communications@aiasurety.com