Pretrial Service Agencies and Commercial Bail Bonding: Why the Continuing Conflict?

Since the posting of the last blog in my recent series on how The Pretrial Justice Institute cannot justify their taxpayer-funded existence, I have had folks asking me why the two industries cannot get along somehow. I will try and answer that question here.

Over fifteen years ago, commercial bail arranged for a meeting with leaders from the pretrial service agencies domain to explore a peaceful co-existence where they would do the things they do best (interview for special needs inmates and advise the court of those needs and then monitor each case to make sure that those needs are being met) and we, at the same time, do the things that we do best (assess for flight risk, underwrite the defendant's bail accordingly and monitor for reappearances), but alas; it was all for nothing.  We were soundly rebuffed (they wanted nothing to do with it), and I still have the letter to prove it.

We, the private sector bail bond industry, have floated the notion again, but again it was all to no avail.

Why is this? Why can there not be a working relationship whereby the defendant's special needs, the county's economic interests and the community's public safety requirements all be met and met much better than they are today?

For many years I thought it all had to do with the fact that both sides are competing for the same customer: the new inmate in the local jail.  That is, I thought that they wanted this person for their customer and so did we and that this made us commercial competitors, natural enemies if you will.  It seemed to make sense, my theory.  The more of these inmates they could beat us to, the more secure was their agency, and therefore, the more secure their own individual job futures.  And it appeared to be pretty much the same with us - the more of those new inmates we could snare, the better off we would be.

I was wrong.  I wish I had not been because the real reason for the conflict between our two industries is far more entrenched and difficult to deal with than our merely vying for the same customer.

The real reason why they are East and we are West, and never the twain shall meet, is because of an inherent philosophical conflict; a fundamental difference of opinion about why those inmates got arrested in the first place. The National Association of Pretrial Service Agencies (NAPSA) and its "front", The Pretrial Justice Institute (PJI), and their respective leaders believe that the only reason anyone is jailed is because we, the society at large, have failed that person. If we had been all that we should have been to that defendant, he never would have been arrested.  His incarceration is therefore not his fault, it is ours.

So, if his being in pretrial custody is our fault and not his own, then how right is it for us to insist that he arrange for his release pending trial? How dare we ask him to pay for his release when we caused him to be in custody? It is only right that we, the taxpayer, should pay for his release. Viewed from this perspective, taxpayer funded pretrial release agency free bail stores make a lot of sense. You have to give the defendant a free bond, because after all, it's your responsibility anyway.  Don't blame the defendant, the devil made him do it.  And the devil, in their view, is you: the non-criminal taxpaying citizen.

If that is what they believe, then what do we believe? We believe just the opposite.  We believe that the defendant, who has been arrested upon probable cause of having committed a crime, has to take some responsibility for his actions.  They believe that it is morally reprehensible on our part to insist upon this.  We believe that insisting upon persons taking responsibility for their behavior prevents future misconduct, advances justice and supports crime victims.

So there you have it; the real reason why NAPSA and PJI and their ilk are so incapable of ever working with our industry for the benefit of all.  And that is also the real reason why they are so dedicated to abolishing our private sector businesses.

What is your opinion on this? I'd be curious to know.

Pretrial Justice Institute - Strike Three: YOU'RE OUT!

This is the final installment in the “Three Strikes, You’re Out!” series of articles about the Pretrial Justice Institute (PJI).

Just to recap: PJI is an organization funded with our federal tax dollars, and its mission is the eradication of commercial bail bonds from all State and County criminal justice systems.

The series is based upon this proposition:  if they cannot justify their mission by showing that commercial bail should in fact be eliminated, then they should not continue receiving federal funding.

We went on to say that the “three strikes rule” should apply: if they try three times to justify their mission and they fail every time then it should be “game over” for them.

In previous articles we showed how they failed in their first and second attempts.

This final article is about their third swing and miss:  their attempt to sell local officials on the idea that they have a superior flight risk analysis tool; “evidenced based practices.”  They claim that this “tool” of theirs enables them to accurately qualify the flight risk potential of any inmate, thereby making commercial bail unnecessary.

Now, if you believe that, I have some beautiful beach-front property in Arizona I’d like to sell you.

You may recall what I said my old law school professor told us about how to overcome the opposition: “If you’ve got the law, beat em with the law.  If you don’t have the law but you have the facts, beat em with the facts.  And if you don’t have the law or the facts, confuse em.”

Well, that’s exactly what they are up to with this snake oil pitch about evidence based practices; they’re just trying to confuse people.  They cannot make their case with law or facts (as shown in the earlier articles), so in desperation they trot out this silliness about “evidence based practices.”

Just what is it, anyway?  The term was originally borrowed from the medical profession.  Doctors were encouraged to use diagnostic techniques that had been proven by excessive research to be the most reliable.

As it applies to pretrial service programs, it means that a local jurisdiction should create a “flight risk assessment instrument” to be applied as inmates are interviewed for release qualification.  This is supposed to reduce the amount of personal intuition used in qualifying a defendant as a flight risk.

This presupposes that bail underwriting can be reduced to a science, something any good bail bond person knows to be a joke.  Bail underwriting, we in the profession know, is more an art than a science.

In short: their “tool” doesn’t work.  It is a spoof and a weak attempt by pretrial service agency advocates to claim relevance and potential usefulness.

The truth is, government run bail stores do an inferior job to private sector bail bond women and men who not only outperform their taxpayer funded competitors, but who provide their valuable service at no cost to the county.

In fact, if you really want to see a true “evidence based practice” just look at commercial bail.  All the “evidence” (the many major research studies on the subject) proves that private sector bail is the better approach.  Now that’s an evidence based practice.

So, they miss again.  They missed on the law and they missed on the facts and now we see they missed when they tried to confuse everybody with this “evidence based practice” hogwash.

Third strike.  That’s it.  PJI should be sent to the dugout.  They should no longer be allowed to use our tax dollars in their attempt to put us out of business.

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

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. 

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. 

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. 

Bail Bonds: The Presumption of Innocence Mischaracterized by Pretrial Release Agencies

The Pretrial Services Agency program advocates, in another contrived and twisted but failed attempt to mount a legitimate challenge against commercial bail bonding has resorted to claiming that requiring a secured bail bond is a violation of the age-old presumption of innocence doctrine.

They know that the doctrine is precious to the American criminal justice system, so we must not be surprised that they would try and identify it with their cause. Their problem is it just doesn't fit.

The fact that their program and the presumption of innocence cannot possibly connect means, necessarily, that they either do not understand the doctrine to start with or they do understand it and know that it does not apply to them. However, they are so desperate to come up with something to use in an attempt to legitimize their program that they decided to just run with it anyway. Probably in hope that nobody would miss the fact that their approach is fallacious.

Well, we didn't miss it. We know that the presumption of innocence has nothing, repeat NOTHING, to do with the Pretrial Service Agencies' programs. I will explain why...

All the presumption of innocence means is that the law does not require a person who has been accused of a crime to prove, or even to put on any evidence of, his innocence. Instead, the government has the complete burden to prove the person guilty beyond a reasonable doubt. And if it fails to do so, as far as the law is concerned, the person is innocent.

Aside from this, the presumption of innocence is largely symbolic. The reality is that no defendant would ever be put to trial, or even arrested in the first place, UNLESS the crime victim, the prosecutor, the arresting officer(s) and sometimes even a grand jury all believe the person is guilty.

So here's the deal: once the government has reason to believe the person has committed a crime, that person NEED NOT BE TREATED AS IF HE HAD NOT COMMITTED A CRIME, AND HE MAY BE JAILED.

To put it another way: the fact that we must consider the defendant innocent when he enters the courtroom does not mean that we must consider him innocent when he enters the jail, OR WHEN HIS BAIL BOND AND RELEASE CONDITIONS ARE SET.

Remember, the Eighth Amendment of The United States Constitution says: "There shall be no excessive bail." It does NOT say: "There shall be no bail set."

The setting of bail and insistence by the court that a defendant's release pending trial must be financially secured violates the presumption of innocence? Phooey!

One of my old law school professors told us about our opposition: "They will try to beat you with the facts. If they do not have the facts, they will try to beat you with the law. And if they do not have the facts or the law, they will try to confuse you."

Don't drink their presumption of innocence Kool-Aid stuff. They're just trying to confuse you.

Bail Bonds: One Effective Pro-Bail Organization

Want to see an organization that has formally, and very practically, aligned the commercial bail bonding industry with the new power base in the United States House Of Representatives?  Take a look at the American Bail Coalition (ABC).

ABC is a working group of most (not all) of America's bail insurance companies.  The organization's sole purpose is to protect and expand the market of the women and men who provide invaluable services to their communities by serving as commercial bail agents.

Two of the places where ABC works hard, and very effectively, is in the field of bail related legislation, both at the state and national levels. Much of ABC's state legislative related efforts are channeled through the American Legislative Exchange Council (ALEC), the country's largest bipartisan state legislator/private sector member organization.

A recent win for ABC at the national level was the introduction yesterday of the Spending Reduction Act of 2011.  This legislation would cut 2.5 Trillion Dollars off of our national debt which today soars at a whopping 14 Trillion Dollars, thus adversely affecting our national security.

We are proud that ABC's Executive Director, Dennis Bartlett, has worked diligently in the last several months on Capitol Hill educating legislators and their staff of the folly of federal tax dollars being spent to support the unworkable County Pretrial Service agencies across the country, and that any providing of federal monies, directly or indirectly, to these agencies should stop.

Under the bill, monies heretofore flowing, via federal "Byrne Grants", to support the growth of the hundreds of county pretrial release agency institutions will cease! And that is a huge win for the good women and men in the private sector business community who help keep their neighborhoods safe by getting defendants to court for proper disposition of the charges against them.

AIA, as a founding member of ABC, takes it's hat off to Bartlett and all of the ABC member companies. These companies, every one, are to be highly commended for investing a portion of their premium dollars to underwrite the sizable ABC budget to the direct benefit of bail agents everywhere.

Hearty congratulations ABC! Very well done!

"Government does not solve problems; it subsidizes them." Ronald Reagan

Bail Bonds: ALEC Pins the Tail on the Pretrial Release Donkey

The American Legislative Exchange Council (ALEC) issued a press release on Tuesday on the dwindling local jail population in America. Did you see it? If not you can read it by clicking on the following link... Jail Population.

You definitely should read the release, especially if you have been subject to the recent specious (means deceptive) plethora of drivel spewing forth from the "free bail bond stores" (county pretrial release agencies) defenders.

These big government advocates, enemies of the private sector, rail on and on about how poor people have to languish in jail pending trial because they do not have the money for a bail bond. This unfair treatment of these poor unfortunates operates to heavily overpopulate the country's county jails.

'Horse pucky!' says ALEC's press release. It points to authorities standing for the proposition that, while from 2007 to 2009 the nation's local jail inmate count has DECREASED, the percentage of persons released on commercial bail has... you guessed it: INCREASED.

How can this possibly be, if more and more defendants remain in the county jail because they cannot afford to buy a bail bond? It cannot be. That flat will not compute. Pure and simple. It just cannot be.

And do you know what? People today can afford to purchase a bail bond. In fact, they can arrange for one today easier than at any time in the nation's history (yes, commercial bail bonds have always been around in America). And do you know why bail bonds are more affordable today than ever before? It is simple: the sellers of the bonds have adjusted their pricing model to meet the needs of the marketplace. That's all. Times are hard, and the bail bond sellers have responded positively to the difficulties of today's purchasing environment.

Jails are overflowing because pretrial inmates cannot afford a bail bond?

Specious, I say. Horse pucky, I say.

What say you?

Bail Bonds 2011: The Year of the Cuts

Political subdivisions of most states are financially upside down. Counties and municipalities are figuratively awash in red ink. In short, they cannot meet their currently budgeted obligations. Some of the recent results of this have been such drastic measures as either eliminating overtime for police and firemen or laying some of these much needed public servants off, or both, thus reducing community safety. Local political leaders acknowledge the bleak situation and say that other dramatic reduction measures are in the offing.

All of these county officials, some of them recently elected, say that the solution is simple; simple but not easy. Expenses, they say, must be slashed. Many entitlement programs and routine expenditures have to be eliminated. They have identified some of these: child welfare, medical services to the poor, after school programs for working mothers, mental health services to the indigent, homeless shelters and local food banks for the hungry. The list goes on. The counties simply do not have the money to support these programs.

But one program is surprisingly not on their cut list: the county's free bail bond store. That's right. These local taxpayer funded "pretrial release agencies" will continue to operate full bore. They interview newly arrested persons, recommend to the bail magistrate that these persons be released at no charge into the oversight of the agency. This service is free to the defendant but certainly not to the local citizens, millions of whose dollars are spent annually to operate this criminal welfare program.

All of the other services to be cut cannot be replaced by some other source. Not true of the free bail bond stores however, because the private sector bail bonding business already does this same work and at absolutely no cost to the county. And they routinely outperform the county criminal welfare program in the same work.

Taking money away from persons desperately in need of help only to use that money to provide free bail bonds to persons who can pay for this themselves?

How can that be right?

Please feel free to comment.  I am extremely interested in your point of view.