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.

PRETRIAL JUSTICE INSTITUTE: Please Show Us Your Numbers

What exactly is the Pretrial Justice Institute? Perhaps the best way to know would be to examine what the Institute itself says that it is. Here is exactly how they are described in their own words: "The nation's only non-profit organization dedicated to ensuring informed pretrial decision making for safe communities."

That is indeed a lofty claim. And it states a star-high goal: "safe communities". What is claimed is something every decent person hopes for: how could anyone in their right mind and having even one ounce of moral fiber argue against promoting safe communities? "Safe communities" would represent a number of highly desirable benefits. Just a few examples would be: less allocation of much needed financial resources for crime prevention,  a citizenry free of fear of personal harm for themselves and their families, a lighter burden on the community's criminal courts in particular and justice system in general and, last but certainly not least, a reduced number of crime victims.

Of course,  a person or organization who says they are the significant benefactor of such marvelous and sought after blessings should be able to proffer some legitimate bona fides. That is, they ought to be able to place upon the table some tangible proof in support of their claim.

Wishing to neither appear unkind nor to embarrass anyone, we are nevertheless compelled to ask this question of the Pretrial Justice Institute: What evidence do you have to demonstrate that you are in fact advancing the interests of community safety? What can you bring forward to prove that your design is achieving that worthy objective?

No knowledgeable person within the criminal justice field would deny that there is a direct correlation between persons released from pretrial custody actually making their assigned court appearances and the misconduct rates of those persons while so released.  More simply stated: the method of pretrial release that performs best in terms of getting its charges to court also has, among all other methods of release, the lower percentage of reoffenders.  Better court appearance rates equals lower recidivism and therefore fewer crime victims.

Would it not clearly follow that if the Pretrial Justice Institute would have us believe that it really is most effective in improving community safety it would readily show us those performance statistics? We would all concede that numbers do not lie, so just put up the numbers and all will agree that you are indeed what you say you are: an organization that "makes for safe communities." If, that is, what you bring forth proves your claim.

There is, perhaps, an even more compelling reason for members of the  taxpaying public who fund your expensive organization to seek that proof: you go about the country asking local officials to displace private businesses that in fact actually do a good job of getting persons to court and thereby help protect the public. And you want those private businesses replaced by very expensive local taxpayer funded county agencies. Some dismay visits your making these recommendations when you have thus far refused to provide any performance statistics in support of such radical proposals.

So, please, Pretrial Justice Institute, provide those numerical justifications for your position.  I am posting this request in such places that there is no doubt but that your will see it.  And, respectfully, I am asking for you to please respond to my request herein.  If I am in error regarding your having already demonstrated your tangible proofs of superior performance, please show me where I have gone astray in that respect. I will accordingly own up to my mistake.  Otherwise, please be responsible enough to explain that as yet you have no such proofs. That would be the responsible thing to do, and it would, I am sure, be much appreciated by all: the local opinion leaders to whom you make your claims, as well as the general public whom you seek to have financially underwrite your proposals.

Thank you for your consideration of this request.

Commerical Bail Bonding: Holding the Line on Public Safety

It has become more and more obvious: commercial bail is the last buffer of safety between the innocent public and the "suspected" criminals (that is what "probable cause" means: there is a good faith basis for believing that this person has committed the indicated crime).

Some "barrier of safekeeping" must be established to provide some modicum of protection for the non-criminal persons in the community until the formal question of guilt or innocence of the accused has been sorted out.

So what will constitute that barrier? Pretrial Service Agency oversight? Doesn't work. Own recognizance release? Doesn't work. Deposit bail? No, it doesn't work either? Numerous studies indicate that the "misconduct" rates are unacceptable for each of these designs. That leaves only the financially secured release method provided by the private sector surety insurance industry. It works. The misconduct rates of persons released in this way are acceptable. The numbers prove it. Commercial bail is the only effective safeguard available today.  I look forward to your comments.

PRETRIAL RELEASE AGENCIES vs. COMMERCIAL BAIL...Enough Already!

Let’s step back for just a second or two and stop all the rhetoric and dramatizations and mudslinging, can we?  Just for a little while, at least for long enough to get all the emotions out of the way, so we can take an honest, objective look at what is really going on between these two industries; one government and the other private sector.

Sometimes participants in a dialogue get so invested in their side of an issue that there is no longer meaningful dialogue but only heated debate.  Would today’s Washington, D.C. serve as an example?

So how about it? Can we, just this once, give each side the benefit of the doubt as far as having good intentions is concerned? Can we do that? Assuming that we can, let’s see where it leads us.

Personally (and I have been just as engaged in the “us against them” game as anyone), I am willing to concede that both sides want the same things: (1) for defendants released pending trial to come back to court and (2) for that defendant not to create harm to another person while awaiting that court date.

Now, to be sure, it is entirely possible that the motives on either side may be different.  But actually, I sometimes wonder about even that.  Are not each of the people involved, whether they be pretrial release employees or independent sellers of commercial bail bonds both doing what they do as a means of making a living?  Come on now, it’s OK to admit that. There is nothing wrong with that, for goodness sake. “The laborer is worthy of his hire” (Luke 10:7). Here the pretrial service agency employee may say, “Yes, but I’m different, because I truly care also about the defendant.” So let’s give the bondsman the right to be similarly motivated; since  we are putting aside, for this little while, the aspersions, right?

Then where are we, at this point in our exercise? What do we know? Well, we are all trying to make a living from what we do and we all also have empathy for the defendant. Also, we agree that we all want the defendant to make his court appearances and not to engage in misconduct while awaiting disposition of his case. Right? It seems that we can surely all be in one accord on these principles.

So then what is left as a basis of disagreement between the sides?  It surely can be nothing more or less than which side’s approach to release of the defendant has the greater “utility”.  In the mid-1800s an English philosopher named John Stuart Mill introduced “utilitarianism”: a method for measuring the effectiveness or “value”, if you will, of any idea, system or rule.  He suggested that one of these things is only as “good” as it is “useful”. But that begs a question, doesn’t it? How do we know what is, or conversely is not, “useful”?  Mill didn’t leave us in the dark on this. He said that thing is useful which generates the greatest amount of benefit for the greatest number of people.  Particularizing it to our discussion, then, it would go something like this: “That system of release pending trial is best which creates the greatest quantum of benefit to the largest number of participants in a given criminal case”. Are we all still in agreement on principle (I am trying hard here to stick to propositions with which neither side can reasonably have an axe to grind)?

OK. Now, who are these “participants”? Let’s see if we can agree on their identities. Would they not be: (1) the accused, (2) the court, (3) the victim and (4) the community at large?  If we are correct thus far, then the next question is: what system of release would best serve the interests of the greatest number of persons so involved?  Would it not be that system, as we have already observed, which gets the defendant to court and minimizes the likelihood of misconduct during release?  There is no room for disagreement here, is there?  I wouldn't think so.

So (and please, let’s continue our objective approach here), is there a way to know the true answer to our key questions as stated above?  Certainly, the best place(s) to go for such an answer would be any credible (unbiased, qualified and professional) studies designed to provide that answer. No objection for either side so far, right?

That drives the next question then, doesn’t it?  Are there such studies?  The unqualified answer is: yes, there are. Let’s mention here just three of these: (1) the recurring studies performed by The Bureau Of Justice Statistics arm of The United State Department Of Justice, (2) The University Of Chicago School of Law study and (3) the very recent University Of Texas at Dallas study performed in Dallas County, Texas.

Were these studies in sync on our key points of utilitarian interest? They were. They all reported that the private sector commercial bail industry provided superior performance, across the board.

You will note here, I hope, that I have tried very hard to be analytical rather than confrontational. I have not discussed, for example: great economic benefits disparities, best return on taxpayer investments differences or preservation of court integrity advantages.  I have tried to stick to “measurable” qualities of utility alone, and I have confined myself exclusively to those key performance requirements that we agreed upon at the outset.

In one final effort at demonstrating attempted lack of bias and fairness of approach, I sincerely invite any who find fault with my analysis to please share with me their rationale. I would be most interested and appreciative.

Commercial Bail: The Great Compromise

Those who participate in the providing of security so that persons accused of a crime may be at liberty pending their trial not only perform an indispensable service to the effective administration of our country’s criminal justice system, they also are the inheritors of a great legacy.

These women and men, these “bail bondsmen” as they are called, without whom there could be no such “secured releases”, are able to trace, with justifiable pride, their origin in America all the way back to that cold day of December 15, 1791 when the first ten amendments to the united States Constitution were ratified.  These amendments collectively were called “The Bill Of Rights”, and number Eight among them said: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Bail, the process whereby one would, upon having someone place with the court sufficient security, be released from pretrial custody, thus found its way forever enshrined in that greatest of all documents -  a document evidencing individuals surrendering their autonomy in order to create agreeable rules by which to live. Of this document, The United States Constitution, United States Supreme Court Chief Justice Warren Burger wrote: “Our Constitution has had as great an impact upon humanity as the splitting of the atom.”  And thus “secured release” (precisely what commercial bail is all about) became an integral part of that document upon which our very nation was founded.

But this issue of whether to release persons prior to their trials clearly presented the framers with a challenge; actually a conundrum.  On the one hand a good government would be fair to all concerned, whatever the issue at hand.  Where, for example, a person has been arrested and placed into custody upon reasonable suspicion of having committed an offence against the state (all the rest of the people), that person should be treated fairly under the circumstances.  Certainly it would be better for him if he could be at liberty pending trial so that he could tend to his work, be with his family and assist his attorney in the preparation of his defense.  But the interest of the balance of society (those whose interests the accused is charged with having violated) are also to be considered, are they not? And what, exactly, are their rights in the matter? Is it not simply to have justice done? And does that not mean for there to be a determination of the guilt or innocence of the accused, and if guilty he in fact is, then for the proper measure of punishment to be applied?  What would have to be assured in order for those rights to ultimately be protected? Would it not be to make certain that the accused stood trial?  It seems that these rights of the community to see justice done not only can and would occur if the defendant appears for disposition of his case, but it is just as clear that justice will not, and in fact cannot, occur if he does not appear.

This, then, was the founders’ objective: to be fair to the accused while not unduly diminishing the rights of the community at large.  George Mason, in the Virginia Declaration Of Rights, in January of 1776 said: “Government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community.” And our forefathers were no doubt grappling with how to meet this duty to the community without at the same time sacrificing fairness to the accused. And so they came up with a solution, a compromise of sorts, which would as perfectly as possible protect both sides of the equation; the accused and the rest of the community.  They would allow the accused to be released before his trial (thus being fair to him), but only upon the condition that security, in an amount not more than adequate to ensure his reappearance, be put up with the court (thus being fair to the rest of the community). And that is the Eighth Amendment: “There shall be no excessive bail…”. In other words: the accused can be released, but only if his return to court as directed is sufficiently secured .  It is no coincidence that most states have “copied” this concept in their own state constitutions with such words as: “Offences shall be bailable upon sufficient surety”.

This, then, was the founders’ compromise, and it leaves open only the key question which should be adequately answered prior to the release from pretrial custody of any accused: What amount of security is required to reasonably guarantee that this person will return to court when ordered to do so?  And the commercial bail bond writer is the one putting up that financial “guarantee” ensuring that the accused will stand before the court so that “justice for all” is accomplished.

Commercial Bail Aligns with the American Bar Association

Opponents of the private sector insurance business of commercial bail bonding often attempt to justify their position by claiming support from the American Bar Association (ABA).  It appears, upon examination however, that on principle the ABA and commercial bail are not so at odds as the “free bail” champions would have you believe.

First though, a personal disclaimer: while I have long been associated with the commercial bail side of the equation and am considered by some as a qualified spokesperson for it, I cannot claim the same privilege when it comes to the ABA. I have been a proud member of that organization for many years and have even written articles on bail published by it, but I still cannot presume to speak for them on the issue made the subject of this piece. I believe that authority resides exclusively within the confines of the ABA Criminal Justice Standards Committee.

That having been said, I nevertheless believe that my analysis of the agreement in principle that exists between the ABA and commercial bail on best practices of pretrial release is sound and so I offer it here for the reader’s consideration.

The central question is: what method of release pending trial, currently in existence, best meets American justice system requirements?

I believe that a good case can be made for the proposition that the ABA’s combined pronouncements would require the answer to be: commercial bail.

Here is how I arrived at that conclusion: The Third Edition of the ABA Pretrial Release Standards provides at the outset and as a background for all that follows, that the purposes of the pretrial release decision are the three basic elements found in ABA Pretrial Release Standard 10-1.1, which are:


     A. “PROVIDING DUE PROCESS OF THOSE ACCUSED OF CRIME.”
          The heart of this is, of course, the Eighth Amendment to our U.S. Constitution providing  
          that bail shall not be excessive.  Commercial bail could not agree more and lobbies right
          alongside the ABA for bail being set in “reasonable” amounts, certainly not more in a given
          case than that calculated to ensure the appearance of the accused as directed.


     B. “MAINTAINING THE INTEGRITY OF THE JUDICIAL PROCESS BY SECURING  
          DEFENDANTS FOR TRIAL.”
          Every major study on the subject of appearance rate comparisons among all the various release
          methodologies always has commercial bail being superior to any others.


     C. “PROTECTING VICTIMS, WITNESSES, AND THE COMMUNITY FROM THREATS,
          DANGERS OR INTERFERENCE.”
          Again, all credible studies demonstrate that the misconduct rates of released subjects is lower
          for those released via the commercial bail bond system.


In essence, then, there we have it. The primary qualification is: that method of release which satisfies the requirement of the Eighth Amendment gets defendants to court for disposition of the charges against them and affords the highest degree of public safety.

The hands-down winner is the commercial bail system. Some other approach may satisfy one of these three requirements. For example: the unsecured own recognizance release approach may satisfy the “no excessive bail” restriction, but no method apart from secured release as provided exclusively by commercial bail accomplishes all three objectives: (1) fairness to the defendant, (2) fairness to the court and (3) fairness to the community. And all three of these, combined, represent what the ABA says must be in place for all around justice to occur.