Sunday, September 29, 2013

Hats with No Rabbits and Rabbits with No Hats: The Plight of the Pretrial Justice Institute

The great trial attorney, F. Lee Bailey, once got this question: “Mr. Bailey, you try so many high profile lawsuits and always, toward the end of the trial and just when it seems you are being defeated, you always seem to magically pull a rabbit from a hat. How are able to do that?” Mr. Bailey answered; “I have a hundred rabbits and a hundred hats.”

In its frantic attempt to convince government officials, state legislators, judges and local opinion leaders that they should eliminate private sector commercial bail bonding from the nation’s criminal justice system the Pretrial Justice Institute finds itself desperately in need of at least some indication of credibility. They argue in favor of replacing the system that has proven workable for over two centuries with local taxpayer funded “free bail bond stores” called Pretrial Service Agencies. It is an enormous challenge for them, that they have absolutely no proof whatsoever that their proposed method of release works at all.

When we say “works”, what do we mean by that?  Any system is only as good as it is “workable”, and they have, despite numerous requests to do so, brought forth not one scintilla of evidence that their Pretrial Service Agency approach “works”. Exactly what would they have to bring forward to demonstrate this “workability”? There is only one proof they should bring, and that is that their method does a very good, or even a decent, job of getting defendants to court for disposition of their cases. So why don’t they go ahead and get a study done to show that they actually do a good job of getting person to court? The answer is simple: they cannot afford to do such a study, because they already know that such a study, if credible, would show just the opposite: namely, that they do not do a good job of getting defendants to court at all.

So what do they do, since they cannot live with the facts? They try the old F. Lee Baily maneuver: they try to hoodwink their audience by pulling a magical rabbit from a magical hat. And how do they do this? One way is by trying to confuse their listeners, or readers, with the law on the subject. An old law school professor told his class on trial tactics: “If you have the facts, beat em on the facts. If you don’t have the facts but you have the law, beat em on the law. And if you don’t have the facts or the law, try and confuse em.”

Well, as it turns out, they do not have the facts so they lose there, and they do not have the law either, so they try to confuse you by making you think they do. Here’s how they go about it: they take the second of two big cases on what a judge can consider in setting the conditions of pretrial release, the 1987 U.S. Supreme Court case of Salerno. This was a federal case where the court setting bail held the defendant without bail because the government proved at a hearing on the matter that the defendant would be a great danger to the community if he were released prior to trial.  So, the anti-private sector bail folks argue, this means that the court can consider anything it wants in addition to measures relative to ensuring the reappearance of the defendant as directed by the court. That is definitely the opposite of what the court held. The holding in Salerno had to do only with cases of extreme violence and where the defendant, if released, would clearly endanger persons in the community.  So that’s their rabbit: that the court can consider all kinds of things other than flight risk in deciding upon release pending trial. That is their rabbit, but they have no hat. The Salerno hat definitely does not have that rabbit in it.

Another rabbit from the hat sleight of hand trick they try to put over on their audience is the tired old story about all the poor people languishing in the local jail for months on end awaiting trial only, repeat “only,” because they have no money with which to pay the greedy bail bondsman to get them out of custody. And when you ask them which kind of inmate they are talking about, they come back with their canned response: “Well, we are talking about the man or woman who has a family and a job and is a zero flight risk and who is held on a very low grade type charge and who really wants out of jail but has no money for the bond premium.” They go on to argue how unfair it is that this poor person should have to remain in jail. And they would be one hundred per cent correct, if there in fact were such a person.

In Salerno they had a rabbit but no hat. Here they have a hat but no rabbit. They want to make the jail their magical hat, so they have to make the poor inmate the rabbit. But there is no such rabbit. That person they have described to us isn’t in the jail, because there are no inmates of that type. Look, the bail bond insurance business is just like any other business. When the economy sours, the sellers have to adjust their pricing model to match the needs and abilities of their customer base. So to make it easier on those who need their product the sellers allow for financing of the purchase price. So this phantom inmate, with his job and his family and his standing in the community (all of that goes into being, as they say, “a zero flight risk”), can arrange for his small bail premium to be paid in installments. Why do I say “small” bail premium? Because they told us this is a non-serious offender type, which necessarily means that his bail amount would be relatively low? Let us say that the bail is even in the Five Thousand Dollar range, meaning the full premium would be around Five Hundred Dollars. If he is all they say he is, then a local bail agent will let him, or someone on his behalf, pay One Hundred Fifty Dollars down and the balance over a number of installments. Are they telling us that with his job and family and his community ties there is just no way he can generate One Hundred Fifty Dollars? Are they serious? No, they are not serious and the main reason they are not serious is because that type of person is not in the jail in the first place.  

There may be people in there with a Five Thousand Dollar, or lower, bail set and they may even have the full premium but still sit in jail. This can happen for one of two reasons.  One, they have absolutely no community ties, they have absolutely nobody who wants them out of jail and there is every reason to believe that as soon as they are released they are gone and no bail agent is going to take five hundred dollars knowing that he will lose more than that even if he recovers the absconder back into custody. And two, it just may be that despite the fact that the pretrial inmate has the premium and could be out today, he doesn’t want out. Would you believe that there are bailable inmates who choose to sit in jail for ninety days or so until they get before the court, knowing that they are going to plead guilty and get sentenced to ninety days but be given credit for time served and thus have it all over and done with? Well, there are. There are such persons.

The point is simply this: the free bail advocate’s pitch is nothing but a spoof. The inmate they describe can get out of jail if he wants to. Their fake “poor, pitiful inmate who suffers at the hands of the greedy bail bond agent” is just that, a fake, a red herring, a made-up characterization designed to pull at the heartstrings of an unknowing listener.

What right do I have to question their tactics? Because if they know about Salerno, which they erroneously rely upon to make their “get rid of commercial bail” argument, then surely they also know about the 1951 U.S. Supreme Court case of Stack v. Boyle with the opinion written by Chief Justice Vinson. Would you like to know what the Court said in that opinion? Here it is: The right to release before trial is conditioned upon the accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty…the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused.” Wonder why they didn’t tell us about that case, because it covers ALL pretrial defendants, not just the very exceptional Salerno type. We can probably figure out why they talk about Salerno but not Stack v. Boyle if we put our minds to it.

Rabbits with no hats. Hats with no rabbits. No magic tricks there. Oh well, if you still believe their snake oil pitch, I have some great beachfront property in Arizona I might be willing to sell you.