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.
Thursday, April 3, 2014
In other words, when it comes to release pending trial, America should "get with the program" and be like England. Why? Is it because local government subdivisions (cities and counties) can maintain the same ratio of enforcement personnel per pretrial defendant as does England? No, it isn't that. Is it because the demographics of our country are no different than those of England? No, not that either. Is it because America and England occupy the same basic land mass and therefore the opportunities of remaining an undetected absconder are about the same? Nope, not that. Well, is it because it is just as easy to flee England as it is to flee America? No. Well, is it because any legitimate comparison of the effectiveness of America's pretrial release practices to England's has been done. No, that is not it either.
Why then, one if driven to ask, should America abolish it's current system in favor of that of some other country? Their answer would be rather obvious, and it would be simply this: America should change it's practice in favor of England's, because in England an accused does not have to secure his release pending trial in order to ensure his reappearance as directed by the court.
One might ask: It can't be that alone, can it? The clear answer is: For them, yes it can. It all, in their eyes, issues from the proposition that requiring financially secured release is so wrong that literally any alternative is preferable. An objective person might wonder: Why should not whichever approach best assures the appearance of the accused before the court so that the rights of all the people can best be served be the chosen approach? That's a pretty fair question, wouldn't you say? But it is apparent that for the "free bail" advocates that's not acceptable. Because for them, whether it works best or not, financially secured release is so patently unfair to the accused that the practice should be forbidden, and that's it. Period. End of discussion. Case closed.
And until one comes to understand their intractability on this one issue, one will never be able to comprehend their stance. You can argue all you like that all credible studies demonstrate that with financially secured release local justice systems will be administered more effectively, there will be less criminal misconduct among those released and thus fewer crime victims in the community. It will fall upon deaf ears unfortunately, because they appear to be so blinded in their mission of not holding the accused accountable to answer to the charges against him that they just cannot hear or see anything else.
This, in my opinion, is not because those enemies of financially secured release don't care or because they are bad people. Quite the contrary: the ones I know are fine people and they have big hearts. But they have, in my opinion, become too swept up in their belief that if we treated the accused more graciously all would work out well in the end. They argue that how one is released should not be a punishment, and they are right about that. Where they seem to go astray is by forgetting that neither is it to be a reward.
I suppose that the thing that is so strange in all this is how "overboard" the "anti-secured release" spokespersons seem to go. It appears that to them it has to be all one way: the defendant's way. But there is more at play than just being sure the system is not overly harsh with the accused. They are correct, certainly, when they say that we should not make it harder on the one being released than is absolutely necessary. But they are incorrect in holding that we should not apply sufficient conditions of release to accomplish the true ends of justice for all in the community.
It is true that you cannot cure bad behavior with mistreatment. But it is also true that justice means rewarding behavior according to its contribution to the order of society. And again I say: conditions of release should not be punitive, but neither should they be rewarding. Remember, the accused is only in custody because, based upon probable cause, he has committed a crime against the people. Asking him to reasonably guarantee that he will come back to court to answer those charges is not a punishment.
We don't need to go back to England. We already left there once.
- ▼ April (2)
- 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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