Wednesday, November 4, 2015

Criminal Justice Reform Made Simple: Call a Bail Agent!

It was just an ordinary late summer afternoon in the East Texas town where we lived. About twenty five years ago it's been now. I was driving home from just another pleasant day in my small law office, not a half mile from home. Not in a hurry, not in violation of the neighborhood speed limit, no other traffic that I recall. Then that sound that one can't mistake - the loud "Whoop, Whoop!" of a police cruiser. I looked in the rear view mirror, and  yep, cop car with lights flashing. "What the .....?" Of course I pulled over. Of course I rolled down my window. Of Course I asked the officer, "What's wrong? Was I speeding." He politely informed me that I had rolled through a stop sign back at Broadway. Showed the license and the registration certificate so he can go call in the stop. Dang it! A ticket, for sure. And insurance rates going up to boot.

Worse. Lots worse! He comes back and asks me to get out of the car. Another cruiser rolls up. I'm told there is an open warrant for my arrest for non-payment of an earlier speeding ticket. "But I paid it!" Not according to the warrant. To jail I go. The usual book-in procedure. I was told what the bail was according to the local bail schedule. I got my phone call.

OMG! Call a bail agent! Get me out of here! The good news was I knew a bail agent. The bad news was the bail agent was my wife. She came, she posted the bail and then took me to get my car. In other words, my wife the bail agent put up my bail which she would have forfeited had I not taken care of the charges against me. Not too much said at the supper table. I went on to dispose of the problem in the most expeditious manner. Not near as big a deal as it would have been if I could not have called a bail agent.

That story repeats itself thousands of times every week across our country. The personal identities differ. The places of arrest differ. The nature of the charges differ, but the key elements are the same: a person is placed into pretrial custody upon reasonable suspicion of having committed an offense against the community, but staying incarcerated until trial is not required under the law here where we live. Call a bail agent!

The most fundamental law of our land assures us that, except in very rare circumstances, merely being accused of having committed a crime does not deprive one of present time liberty. That's because we have a right to place a fair and reasonable security up with the court to assure that we will return to court for disposition of the matter. Call a bail agent!

The program is not only expeditious, it is effective. The bail agent will see to it that the person charged is in court for a fair conclusion of the matter. The community's right to have the issue fairly resolved is assured. As is the interest of any victim involved. Call a bail agent! And so is the right of the accused to be fairly treated in the process. Call a bail agent! And if, in fact, the accused does skip out on the court date the bail agent will retrieve that person to custody. Call a bail agent!

What if no bail agent is required and the person is simply released without any type of security being put up? Lots of studies have been done in finding the correct answer to that question. And the answer is very simply that many of those people just never go back to court. That means, of course, that the better interests of the community, the justice system itself as well the victim go unserved. Call a bail agent!

When you boil it all down, utilizing the bail agent provides not only a service to the justice system, as well as the community and the victim, but in the long run it can be in the best interest of the accused himself or herself. How can that be? It's pretty simple really: putting the bail agent into the mix assures that the accused will have to bear the responsibility for any wrong he has committed. Having his case properly concluded with his having to face up to what he has done, just may be the single most important event in his life. It may be that place where he changes course. Religious people call it "repenting", and maybe that's what it is because the word "repent" means to "make an about face", to turn around from the direction one is traveling and start on another course. People who have spent much time in the bail business have seen it happen more than a few times. Call a bail agent!

But when you take the bail agent out of the picture, are you sending a wrong message to the accused? Are you, in fact, sending him the message that you don't take very seriously the charges against him? And do you do this for him by placing at jeopardy the better interests of all of the other parties involved? How could one really argue otherwise in light of all those credible studies showing that when persons released before trial have their release secured they are not only much less apt to skip out on court but also much less apt to commit another offense and thereby escalate the number of crime victims in the neighborhood? Call a bail agent!

There are those in our country today who say: "But it's not the accused's fault that he did what he did. It's society's fault! It's our fault! He is but the innocent victim and his wrong acts proves it! We let him down by allowing his neighborhood to be such that it encourages crime." Or: "We failed him by allowing his rearing to be by a young unwed mother with five other children so that he had no proper parental supervision." Or: "We did not fund enough programs to ensure that he would not be under the influence of a poverty-laden, drug-ridden environment."

And on and on and on the litany goes of: "It's all our fault, not his, and therefore we cannot make him arrange for being released pretrial in a secured, and therefore safe, manner. Since we did this to him, how can we make him call a bail agent!"

Followed to its logical conclusion, what they're really saying is that it's time we took that accused to raise now, since we failed to "raise him right" the first time around.

It begs an interesting, but pertinent, question: how many of those "free bail, criminal welfare" advocates would raise their own children in such a fashion? How many would actually give rewards for poor performance? Probably none, for the simple reason that they know in their heart of hearts that if they reward poor performance they will only get worse performance. And they also know that in doing so they will be driving the final nail in the coffin of that child ever enjoying the personal dignity that comes from taking responsibility for their actions, and thus their life. Call a bail agent, for goodness sake!

And yes, in case you are wondering, I am aware that there are those today who more loudly than ever protest that this secured release method, so long an integral part of our country's criminal justice system, is patently unfair and should be replaced by taxpayer-funded government "free bail" agencies. The fallacy of their argument is obvious in the claim of a recent federal court case filed against the City of San Francisco by a group of these anti-constitutional, government-sponsored bail advocates. According to a media report on the case, the plaintiffs clam in that suit: "The sole criterion determining whether a pretrial arrestee walks free or sits in jail is the amount of money he has." This remark not only establishes their goal (total elimination of secured release pending trial), but it demonstrates conclusively that their claim is founded in a gross misstatement of the true facts. San Francisco's spokesperson accurately responded, explaining that bail has two purposes: to protect the public's safety and to make sure that the accused returns to court as directed, and that judges have those two interests, and only those, in mind as they set the conditions of pretrial release.

That spokesperson is correct, and it has always been so in America. The Eighth Amendment to our constitution establishes that there should be bail, and as a safeguard it insists that the bail should not be set in conditions beyond those necessary to ensure those two critical underpinnings: public safety and justice system integrity. Chaos reigns in the absence of both these elements. Massive critical studies on the subject have long established, over and over again, that secured release is the only approach that guarantees, in the best possible way, both safety and compliance. Do we want those critical social assets to survive? Then call a bail agent.

I look forward to hearing your comments.

Wednesday, October 1, 2014

Handcuff Criminal Courts...Really?

The Eighth Amendment of the United States Constitution states very plainly: "There shall be no excessive bail." Bail is something held by the court in lieu of the defendant's continued pretrial confinement, which "something" would be lost should the defendant not reappear as directed and which loss would be unacceptable to its owner, thus enlisting the owner to assist in assuring that reappearance.

It clearly did not occur to the framers of our country's Constitution not to have embedded into our criminal justice system that methodology - a practice which would get the defendant to court but which would not treat him unfairly in the process, hence, the Eighth Amendment. And the Amendment was ratified by a majority of the states thereby making this concept of guaranteeing an accused's appearance in court, as well as not treating him too harshly, an inherent part of our nation's Bill Of Rights.

By this measure two "rights" were enshrined for all time in our system of criminal jurisprudence. One of them was the right of the people to have the accused be present in court for the resolution of the charges the people had, through their law enforcement representatives, brought against that person. Certainly the framers understood that absent that critical presence of the accused there could no accountability should the accused be found guilty of the charges against him. And that principle of accountability is the very keystone in the arch of our criminal justice system.

The other "right" assured by the framers and the states via the Eighth Amendment is that of the accused himself not to have that which the court insisted that it hold to guarantee reappearance be more than necessary to accomplish the desired purpose. In other words: the "bail" should not be "excessive". Our highest court has itself answered the question: How much bail is too much bail? And it said that bail is "excessive" if it is in an amount greater than that reasonably necessary to ensure the appearance of the accused.

It is the responsibility of the judge in any given criminal case to set the conditions upon which a person charged with a crime may be released from pretrial custody in accordance with the requirements of the Constitution. And it is that judge's sworn obligation to fully adhere to the mandate of The Eighth Amendment. In deciding what will be acceptable to guarantee reappearance, that judge is "hemmed in" on both sides. On the one hand, whatever is to be placed up has to be meaningful enough to the one putting it up to sufficiently motivate the accused to appear so the principle of accountability will be adequately protected. The party putting up the bail may be the defendant himself, in which instance he is said to be his own surety, or it may be some third party with whom the defendant arranges to put up the bail deposit. But whoever the surety turns out to be, the bail should be sufficient to assure reappearance. However, on the other hand, it cannot be higher than it has to be to accomplish that objective. Every time bail is set the judicial officer setting that bail is like a man walking a tight wire: if the bail is set too high he falls into the chasm of unfairness to the accused, but if on the other hand it is set too low to accomplish its purpose he falls into the abyss of failed duty to all of the people who have a right to that accused's presence before the court at all appointed times.

All of this is what makes it so important that the court not be deprived of any of the resources legally available to it as it attempts to keep safe all the pertinent rights of the accused as well as all the other members of the community.

And yet, there are those today who seek to do precisely that: if not remove entirely, then weaken substantially, the most effective tool the court has in meeting appropriate bail objectives. This is what we mean by "handcuffing" the court. These advocates attempt to persuade state legislators, county government and law enforcement officials as well as other local opinion leaders to significantly limit the court's use of one of the two methods available to the court to ensure appearances.

The two methods the court has to hand may be adequately described as "secured" and "unsecured" meaning, in the first instance, someone places with the court something of tangible value which would be "forfeited" should the accused fail to appear and in the second instance the accused would be released based solely upon his promise to reappear as instructed.

Is there anything inherently defective with either of these methods? No, there is not. There are times, surely, when the accused may be justifiably released with no tangible security to motivate his reappearance. There are others, however, when that promise alone will not suffice, and other influences are required to be brought to bear to keep that release within the established confines of the Eighth  Amendment. These advocates should not, therefore, be so hasty to argue for diminution in the use of "secured" release and an increase in the use of "unsecured" release. And this especially when all the evidence on the subject of which method is most reliable establishes, without exception, that secured release significantly outperforms unsecured release in getting persons to court.  Credible studies demonstrate this conclusively. And if one just thinks on this a bit, the reason why becomes obvious: the likelihood of performance in any endeavor is enhanced when there is something to lose by virtue of non-performance. It is no different in bail: if there is something of value to be lost by not appearing then the chances of appearance increase substantially. But the converse is also true: if there is nothing to lose by absconding, the temptation to skip out on court becomes stronger.

And getting persons to court is only one of the several ways in which secured release trumps unsecured release. Another of the benefits of secured release is lower recidivism among those out on bail which in turn of course results in fewer crime victims. There are also significant economic benefits to local as well as state governments in addition to less wasted time and resources for the courts. The reduction in extra work for law enforcement in trying to chase down those who flee is another advantage.

Why, then, would anyone lobby for reducing the courts' use of the secured release option? There are a number of theories. No doubt one, some, of all of them are correct.

Some say it is in the vested interest of the local pretrial release agencies for them to promote forcing the private sector bonding insurance companies and their agents to get fewer people out of jail so the taxpayer funded county agency can increase the number of its own "customers". These county government agencies are funded exclusively by county taxpayers while the private sector bonding company’s sole source of income is from the defendants who pay for the bonding companies' services. Pretrial release agencies staff members interview newly arrested inmates and then recommend that the courts release defendants unsecured but to be monitored by the agency whose responsibility it is to get the defendant back to court.  Many studies have been done in this area.  One study in particular, a study performed on the Harris County, Texas agency, showed that persons monitored by the agency were twice as likely to fail to appear as were those on secured release. So some say these government agencies desire for the courts to curtail the use of secured release is all about both sides vying for the same inmates.  They both "make their living", so to speak, by getting persons out of pretrial custody.

Others say the campaign against private sector bail providers is ideologically motivated. This seems clearly to be true in the case of some anti-commercial bail advocates. A prime example would be the Pretrial Justice Institute (PJI), an organization dedicated to the national expansion of the use of local government operated pretrial release agencies while at the same time excluding the private sector bail providers altogether. PJI receives large dollar funding from the United States Attorney General's Office. While replacing private businesses with government operated facilities seems to be the trend of the current administration in Washington, the PJI rationale goes beyond that and argues the proposition that there is something morally reprehensible about "money bail" - the practice of having someone pay a third party to deposit with the court the financial security necessary for that person to secure his release from pretrial custody. Their reasoning seems to be that getting the defendant released should be the government's job, since the government is responsible for helping citizens in need. In this way, they promote a sort of "criminal welfare system" approach. This is totally logical of course, if one buys into the notion that this defendant has no responsibility for having gotten himself arrested in the first place. It is easy to see, then, that whether one agrees with their analysis depends solely on which side of the ideological line one falls on: "personal" responsibility or "social" responsibility.

There are no doubt other reasons some may offer to support their advocacy for "government operated release outlets" in place of private business service providers, despite the fact that their approach flies in the face of "bail" as contemplated by The American Constitution where "bail" meant someone having something of value to lose in the event the defendant absconded.

All of this begs an obvious question, doesn't it? Why do they themselves say that government operators should replace private business women and men in this manner? The star they have hitched their wagon to is strangely this: commercial bail providers are the cause of today's jail overcrowding problem. They say that many people languish in every large jail for the sole reason that they cannot afford to pay a commercial surety the premium to post their bond. There is no question that some urban counties are challenged by their jail populations. And it is certainly easy pickings for the government sponsored bail advocates to seize upon any problem they can find and announce: "Our opposition caused it. You need to get rid of them." But in this case, is there even a hint of truth in their claim? If there is, nobody has produced it. We know that many groups of persons make up a large county jail's inmate base. There are persons awaiting transport to the State penitentiary and persons serving county jail time and persons on hold by another jurisdiction and persons who are simply non-bailable for any one of several reasons. In fact, is anyone at all there only because they cannot afford a bail bond premium? The bail bond market place would indicate that this is pretty unlikely, because today's bail providers adjust their pricing and payment options to meet the demand of their customer base. If a person in a local jail today has such community ties that someone will come forward on his behalf and make easy to meet bail premium arrangements, that inmate can have a bond. Not long ago The Texas Public Policy Foundation indicated that before assigning blame for jail population problems, thorough local studies need to be made to determine what the true reasons for overcrowding are. But to point the finger at the private sector bonding industry is premature at best and highly specious at worst.

None of this really matters though; unless State and County policy makers are prepared to hamstring the State's criminal court judges' ability to utilize bail as originally intended and thus preserve the principle of accountability within a state’s criminal justice system, all the while realizing that such "handcuffing" of the courts would likewise increase the financial burden on counties exponentially while growing the number of crime victims. Everything depends upon whether those policy makers would be ready to cast aside that timeless admonition: "Don't change what works."

I look forward to your comments.

Wednesday, June 11, 2014

PART 2: The American Bar Association Release Standards: Who Does Them Best?

Recently I proposed taking a look at the American Bar Association's (ABA) suggested standards to be met in releasing an accused prior to trial and then reviewing the current release practices to see just which one approach best accomplishes each of the purposes established by the ABA.

Stating those standards to be met in each release again, they are: (1) make sure the due process rights of the accused are protected, (2) make sure the accused makes all of his scheduled court appearances, and (3) make sure the rights of the victims and the community at large are not put at risk.

In our first article we discussed the ABA Standards in general, and we examined the first requirement: that the due process rights of the accused be preserved. We talked about just how those rights, as they relate to bail, could be violated. We saw that the key here would be for the court to be certain that the conditions of release (the amount of bail as set, for example) not be more onerous than they ought to be. And we concluded that this requirement is exclusively in the hands of the court, and to some extent defense counsel who can always by way of proper motion have the release conditions changed if they are in fact egregious.

This brings us to the second condition which must be met which the Standards state as: "maintaining the integrity of the judicial process by securing defendants for trial." In layman's language this means: "Make sure the accused will come back to court when he is supposed to."

We need to remember here that we saw earlier on that the available methods of release pending trial fall neatly into one of only two available methods: "secured" and "unsecured". In a secured release the person will be monitored and gotten back to court by private businesswomen and men who provide insurance to the court that the accused will appear as directed. In an unsecured release in very low level charges the court may leave that "monitoring" solely to the accused who promises to the court that he will reappear or pay the bail amount. On the more serious unsecured releases the court will assign that oversight to the local taxpayer funded County Pretrial Release Agency.

So, in keeping with the purpose of this series of articles, we should attempt to answer here the question: Who does the better job of getting persons back to court,  secured or unsecured release? We must remember that the ABA recommends that this is a major consideration for the judicial officer who sets the terms of each release.

Fortunately, we are by no means without resources in searching for the right answer to our question. Many credible studies have been done by highly qualified researchers have explored this: Who gets an accused to court best?

For many years the Federal Bureau Of Justice Statistics gathered pretrial release data on a national scale, and one of their objectives was to determine which of the two methods, secured or unsecured releases, performed best in terms of meeting the ABA Standard of getting persons back to court for disposition of the charges against them. They would gather this information on many thousands of cases in one year, compile and compare one set of data to the other set and then in the next year they would publish their findings. So, every other year a report came out from the United States Government Printing Office and one could see for himself which approach performed best, secured or unsecured release. It was no surprise to persons familiar with the criminal court system that over many years, in every report, without exception, secured release outperformed unsecured release. Then a separate study was undertaken by the American Legislative Exchange Council in the four major California Counties. The result? Secured release outperformed unsecured release hands down. A national analysis was done by a well known researcher, Alex Tabbarok, on behalf of the University Of Chicago School of Law. The outcome was the same: secured release did by far he better job.  What about local studies, where just the data of a single urban county was considered? That too has occurred. Just recently such research was performed in Dallas County, Texas by The University Of Texas. This results of this very thorough study were no different: secured release did the better job.

Remember that determining who is to bear the oversight responsibility of those released pending trial is up to the court making the release decision. The judge may elect to order the accused released unsecured, assigning the reappearance responsibility to the county government pretrial release agency. Or, that responsibility may be assigned to an insurance provider who puts up its own money which will be forfeited should that provider not have the accused properly before the court.

A very strange tension of sorts has arisen here. There are those today who are arguing that all releases should be unsecured. That is, they advocate eradicating the private sector bail insurance industry in favor of county sponsored "free bail outlets" which operations are funded with local county taxes. Why, one might ask, would anyone lobby in favor of government programs which are demonstrated to be inferior in performance to the private business secured release providers?

The answer seems to be one borne of ideology. Advocates for unsecured release government provided bail appear to be persuaded that it is not the fault of the accused himself or herself that they got themselves arrested. They got arrested, the theory must go, because they were somewhere back along the way "socially deprived". In other words, back there someplace, we the people did not provide that person with all he or she needed to prevent them from ending up in jail. If there is a fallacy in this reasoning, and there surely seems to be, then it must lie in the fact that it leaves no room for personal responsibility. I have lived long enough to see many of these persons in pretrial detention. I have even gotten to know some of them. I have found out that some of them, like me and others, were born in poverty to parents who picked cotton and chopped corn to make their living. Yet some of us ended up in jail and some of us didn't. This alone seems to suggest that a man will reap the good results of his honest thoughts and acts but that same man will also bring upon himself the painful results of his own wrong choices. Maybe the simple truth is that my good thoughts and actions can never produce bad results and my bad thoughts and actions can never produce good results. And at the end of the day, the choices are all mine. If that be true, how can it be the responsibility of the government (which, after all, is simply the people) to reward me for bad performance?

But all of that aside, and back to our original quest (to find out which release method works best), it would appear that we have the answer to the question: does secured or unsecured release work best in terms of getting persons back to court? The answer clearly is: secured release is best. And therefore, private sector commercial bail bonding is the method most aligned with the ABA Standard: "maintaining the integrity of the judicial process by securing defendants for trial."

I look forward to reading your comments.

Monday, April 21, 2014

American Bar Association Release Standards: Who Does Them Best?

In a recent article I recommended a public sector (Pretrial Release Agencies) and private sector (commercial bail) collaboration. I suggested that there be an exploration of benefits that might flow from such an experiment. In support of that proposal it seemed to me that first we would need to have some solid "common ground", some principle, or set of principles, upon which both sides might agree as a launching pad for that exercise.

I could conceive of none better than the very heart of the American Bar Association Pretrial Release Standards For Criminal Justice as found in the beginning recommendation of that impressive work. Standard 10-1.1 sets the stage for all that follows. It states: "The purposes of the pretrial release decision include providing due process to those accused of crime, maintaining the integrity of the judicial process by securing defendants for trial, and protecting victims, witnesses and the community from threat, danger or interference."

In other words, there are certain very real and extremely important conditions that must be attached to every release pending trial, and if these conditions are not present in each case then the system, as far as that particular case is concerned, is at substantial risk of failure.

So, it almost goes without saying that the very best method of release in any individual case would be that method which best meets each of these critical conditions.

The conditions are so vital that they bear repeating, and they are: (1) making sure that the rights of the accused are not violated, (2) making sure that the accused returns to court and (3) making sure that the victims as well as the rest of the community are protected.

Now, those advocating for the pretrial service agencies (primarily the Pretrial Justice Institute), insist that only the public sector be allowed to implement these conditions once the releasing authority sets them. The private sector (the commercial bail industry) insists that it is in the best position to implement at least some of these conditions. This difference of opinion is what creates the need to investigate whether particular conditions might be put in place best by assigning their implementation to whichever one of these institutions is best suited to assure the meeting of such condition(s). So just for purposes of this exploration, let's put aside any insistence upon "being right" and look at the question of which side is best suited for implementation of each condition.

The first ABA release condition, then, is: "PROVIDING DUE PROCESS TO THOSE ACCUSED OF CRIME." Whether either side wants to admit it or not, neither one of them, pretrial services or commercial bail, has the power to implement this condition. It is exclusively within the purview of the court setting release conditions. That is, whether due process rights are violated depends upon whether or not the judicial authority setting release conditions sets them appropriately. If the conditions are inordinately harsh, then as a matter of pure practicality the due process rights of the accused are being violated.

How can we know this? What authority establishes this principle? It is none other than the Constitution of the United States whose Eighth Amendment says: "There shall be no excessive bail." It necessarily follows, then, that if the release conditions are fairly established there can be no due process rights violations as far as release from pretrial custody is concerned. Conditions too harsh would be, by definition, "excessive" and therefore not allowable.

So as it turns out, neither side can say that in the release process it does a better job of protecting the due process rights of the accused than does the other side. And this is true simply because neither side's implementation ability determines whether the release conditions are proper. If there is a complaint about the fairness of the release conditions, as imposed, that complaint must be lodged against the court setting those conditions, and is the proper role of defense counsel as she or he brings a motion to reduce bail conditions. That's it. This operates as the proper remedy in such situations.

So neither the pretrial services side nor the commercial bail side has standing to complain about the other as far as this first ABA requirement (protecting the due process rights of the accused) is concerned.  This first ABA condition belongs exclusively to the court, not to implementers of conditions.

There is room however, for each side to claim superiority of performance in relation to each of the other ABA Standards suggested conditions, and those need to be addressed one by one. That will be the subject of articles to immediately follow. Stay tuned.

Thursday, April 3, 2014

The Bail Papers - Volume 3: Should Bail Be Less American?

I have recently been reminded again of how the government sponsored "free" bail champions argue that America should abolish financially secured release in favor of more "socially conscious" systems such as those prevalent in some other countries. They cite specifically England. Our Mother Country, they reason, does not utilize the practice of financially secured pretrial release, and therefore neither should we.

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.

Wednesday, January 22, 2014

Aristotle and Pretrial Release

In the first installment of The Bail Papers, I suggested that, regarding the process of release pending trial, the most important thing that could come out of 2014 would be the initiation of dialogue between the public sector (government sponsored pretrial release programs) and the private sector (commercial bail bond industry) for the purpose of exploring whether the best that each has to offer might be brought together for the optimum benefit of all stakeholders in that process. Further, I said that following that segment I would offer what I would hope would be compelling reasons to pursue this ambitious exploration project. This article is intended to serve that follow-up purpose.

I believe that the best evidence of the need for the public sector and the private sector to engage in such a discussion one need look no further than the American Bar Association's (ABA) Standards for Pretrial Release. Just the briefest of reviews of those standards will reveal that the ABA breaks the pretrial release process down into four critical elements, each of which must be fully protected in any consideration of release pending trial.

Those four elements, whose integrity must be preserved, are:

  1. The due process rights of the accused,
  2. The assurance of the appearance of the accused as directed, 
  3. The safety of the community and
  4. The rights of crime victims to have the wrongs against them redressed.

It could therefore be very legitimately recommended that the proposed joint exploration of the public and private sectors focus on these four important points, again, as set out by the ABA. Certainly, no one on either side would argue with the proposition that each of the four elements deserve the fullest possible protection.

I believe that this is so important that I will be devoting several future "Bail Papers" pieces on precisely those features.

But the title of this article mentions the Ancient Greek philosopher Aristotle. What could that age old sage possibly have to do with pretrial release? Well, directly, probably nothing, but one of his teachings could have a very great deal to do with how both sides of the proposed discussions should approach their respective roles, should they in fact agree to the joint exploration.

That teaching of Aristotle has come to be known as "The Principle of the Golden Mean". The teaching is all about achieving a desirable balance between extremes. "Nothing overmuch" is another way of stating the principle. From it evolved the notion that all things should be done in moderation.

How can the idea of arriving at a point of balance between extremes serve the suggested dialogue, should it in fact become reality? I think we can use the required four ABA pretrial release elements as an example of how to employ Aristotle's approach. Let's say, for example, that we fully embrace one of those elements, like making certain that we insure the accused's appearance but that we do it in such a way as to fully deprive him of his due process rights. In other words, we throw the ABA element number (1) completely overboard in favor of setting up conditions in full accord with element number (2). Clearly, that would produce a grossly defective product. It becomes clear, therefore, that there must be a "balancing" of protecting due process rights with the integrity of the court. That is: ensure appearance, but not at the expense of the accused's rights of due process.

Any meaningful exploration toward collaboration between the public and private sectors must embody a "coming together" to protect all four of the ABA elements. That would require a movement toward the middle in some cases, a "balancing" of the virtues contained in each of the four elements. In other words, an application of The Golden Mean. Let's hope that each side would exhibit a willingness to do just that. Make sense?

I am told that persons in the public sector camp are reading these Bail Paper pieces. I hope so, and should that be the case I would be pleased to hear any comments.

Tuesday, January 7, 2014

The Bail Papers: Volume One

Some have recently requested that in this new year I put forward a set of bail related articles; a periodical of sorts. One such person suggested that it could be called "The Bail Papers".  I decided to go with that, and hence the title of this piece.

I suppose the reason for the requests was that those making the suggestion all knew that this marks the beginning of my forty sixth year as an attorney whose role included that of being an advocate for commercial bail.  Perhaps they are simply curious about my impressions of the state of the industry considering all that has impacted it, both good and bad, during this time, and especially over the last several years.

Thinking of that, I found myself moving forward from there just a little to ask myself the question:  Do I see anything extremely positive that one could hope for in this year of 2014? And then I considered that the question, if one's heart is really in the right place, should not be confined to just what might be best for the commercial bail industry, but what single development could best benefit the entire pretrial release arena? That seems to be the better enquiry, since how one is released pending trial is such a major component of our country's criminal justice system.

So I confined my pondering to that broader question: What single advance within the pretrial release world would best serve both the administration of justice and the public safety interests of communities nationwide?

The answer that shortly came to me might surprise some of the readers of this first issue of "The Bail Papers". I say this, because over the last twenty years or so much of my time has been spent trying to show that "we" (the private sector bonding industry) are better than "they" (taxpayer funded local pretreat release agencies).

And why, in light of this, would the answer to my question be surprising? Because I believe the best thing that could happen this year would be for these two forces to become the major participants in a new "public-private sector partnership" whereby each side would bring to the country those significant talents unique to each contributor. For, unquestionably, each side has something of extreme value to offer which potential is peculiar unto that side alone. That is: the private sector can bring benefits undeliverable by its counterpart and likewise for the public sector. Exactly what these benefits are will be the subject of another Bail Paper shortly to follow.

More compelling at this point, however, is another question: Could this "coming together" ever even happen, or is it too much to reasonably hope for? It is a very legitimate question indeed, for the depth of the controversy between the two sides has been so pronounced that it puts one in mind of certain biblical language: "Between us and you a great chasm has been set in place, so that those who want to go from here to you cannot, nor can anyone cross over from there to us." Luke 16:26.

No doubt the harsh rhetoric historically flowing from either side may have created a challenge, a "chasm" if you will, seemingly too great even if there were some willingness toward exploration of working together for the greater good. But maybe willingness alone, at the outset, could be enough to open some dialogue, and on the premise that communication is the best solvent a bridge toward a place of at least listening to each other could be built. And after that, who knows?

I can almost guarantee you that some among the leaders of the National Association Of Pretrial Service Agencies and The Pretrial Justice Institute will wonder, maybe even "wonder" to the point of being distrustful, at my suggestion. But even if, over the years I  have caused them to be suspicious of my motives, I could remind us all of something President Reagan once said about collaborating with the political opposition: "Sometimes, to get to the other side of the river, you have to ride in the boat with folks you wouldn't invite home to dinner."

Maybe, then, just placing the public good first and our own interests second a beginning could be had, a beginning on a path leading to a place where all of our energies and resources could be invested in the same overall objective. In the words of another wise man: "Let it be written. Let it be so."  I look forward to reading your comments.