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The Unanswered Question of Bail Reform: Who Pays?

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As a follow up to my last blog post, The Bail Bond Industry: A Scapegoat of Convenience, I wanted to focus this blog post on the question that no one ever seems to want to bring up in the “Bail Reform” discussion.  And that question is…Who pays? Whether it is the state of New Jersey wanting to expand its pretrial services agencies or Maryland’s recent efforts at Bail Reform, public sector pretrial release proponents never seem to be concerned about the real elephant in the room…the money and where will it come from.

The public sector pretrial community for years has touted the success of the Washington D.C. pretrial services agency.  It is the case study that they believe is the perfect pretrial model for success and the blueprint that all counties in the U.S should follow.  However, while they tout the amazing success of the program, there is one topic that they do not typically talk about…and that is the money…or as I like to say the most important question you can ask, WHO PAYS?  The DC pretrial program monitors 4400 defendants at a whopping cost of $59 million.  That is $13,409 per defendant that is spent to supervise defendants and ensure they show up for court (BTW, the commercial bail industry does the same thing at no cost to the taxpayer).  Additionally, when a defendant fails to appear, the DC pretrial office has the luxury of having the US Marshall Service at their disposal to go after fugitives.  BTW, just for the record the success rate of the DCPSA is 88%.  That means 12% of defendants never appear for court.  Now compare that to the commercial bail industry which has a 98% success rate.  It is really amazing to think that a 12% failure rate is considered a success in the public sector.  Just imagine if your airline only got to its destination 88% of the time, or your bank only got your account balance right 88% of the time…would that be acceptable.  And just for the record, the person that funds the Washington DC pretrial program…you, the US Taxpayer.

Now in order for you to fully understand the magnitude of the dollars we are talking about, let me put this in perspective.  If you were to apply the $13,409 per defendant to a typical metropolitan county in the US that doesn’t serve 4400 defendants, but rather 20,000 defendants a year that cost balloons to over $268,180,000 to provide ONE typical metropolitan county in the US a DC like pretrial services agency (FYI…there are over 3000 counties in the US).  And remember that this typical local county won’t have the resources of the US Marshal Service available to help it track down those defendants that fail to appear. They will instead have to rely on an already overburdened and under resourced local law enforcement agency.  What this does is create significant lapses in public safety.  Either police have to put aside regular duties to pursue a growing number of fugitive warrants, or they have to ignore the fugitive warrants and go about their regular law enforcement duties to protect the public.  Whatever they decide to do, public safety is impacted in a negative way.  And please don’t misunderstand my point.  It is not law enforcements fault. The fault lies with an ineffective public sector program that costs counties money they don’t have and requires resources that are already overburdened.  Additionally, these public sector programs do not have the proper incentives and levels of accountability to perform at the highest level possible as does the private sector (i.e. the commercial bail industry). Most importantly, let’s not forget that the commercial bail bond industry is not only the most effective form of pretrial release (proven time and time again by countless research studies and academic papers), but also costs the county $0.  And this is a talking point that never seems to come up in the discussion of “bail reform.”

In a time where local states and county governments are facing tougher and tougher fiscal challenges, the idea of replacing private sector commercial bail with public sector, taxpayer funded pretrial agencies and diversion programs is not only a poor public safety decision, but more importantly also a fiscally irresponsible one.

What the bail reform movement needs is less pie in the sky ideology, but rather more realistic, evidenced based SOLUTIONS to the problem.  Proposing bigger pretrial service programs with bigger budgets doesn’t solve jail overcrowding.  Convincing decision makers to get rid of a long standing, effective private sector business like the bail bond industry does not rehabilitate career criminals.  Letting more so called “non-violent” offenders out of jail with no supervision and no accountability does not increase public safety.  Instead all these types of ideological recommendations do is exacerbate the problems in the system and deflect decision makers from the real problems.   And please know that I feel the same way towards more commercial bail.  Bail is not the be-all end-all answer to the problems facing our criminal justice system.  I am convinced that the answer does not lie with one solution or the other.  Rather, I believe that the answer involves all aspects of the criminal justice system to work together.  The private sector doing what it does well and the public sector doing what it does well.  But to date, instead of trying to solve the real problems of the system, the public sector pretrial community through its “Bail Reform” movement is putting its efforts into creating market share instead of solutions.

It is time for counties around the country to start approaching the ills of the criminal justice system with a comprehensive approach that truly addresses the roots of the cause of the problems it is facing.  Additionally, our decision makers need to start turning to those in the private sector that have the knowledge and experience to help solve some of these challenges in smart, fiscally responsible ways.

via http://briannairinbail.blogspot.com/

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The Bail Bond Industry: A Scapegoat of Convenience

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A couple weeks ago I read an article out of New Jersey talking about the ills of the criminal justice system and the need for bail reform.  The article started with telling the story of a defendant who was released on a reduced bail amount and has since been rearrested for another violent crime.  The article then goes on to talk about the many ills of the criminal justice system all couched under the umbrella of the need for “Bail Reform.” The issues identified in the article were: Jails being overcrowded, inmates being warehoused instead of rehabilitated, bail bond agents writing bail with payment plans, and so on.  Not only did the article discuss these issues as a need for bail reform but also put the blame for them squarely on the commercial bail industry.  After reading the article a couple more times, I felt myself getting more agitated and confused.  I kept saying to myself what does this have to do with the bail industry?  What have we done to have so much hate and resentment thrown towards our industry by those in the public sector? Why are we being held responsible for the criminal justice system falling short? The only answer, the bail industry was being made a scapegoat of convenience.

In order to try and rationalize things a bit, I started to breakdown the potential issues one by one and see if this overzealous criticism and finger pointing was deserved or really as misguided as I thought.  First, I looked at jail overcrowding.  Are people locked up in jail, because they can’t afford a bail bond?  Well, if you read into the article a bit you can see that the author is actually says that people are getting out “too easy” with bail through payment plans.  But even without payment plans, the concept behind bail is to facilitate the release or make it more attainable for families who can’t afford the full amount of the bail.  By assuming part of the financial risk the bail agent not only makes it easier for families to get their loved ones home, but also guarantee to the court that the defendant will show up for ALL court appearances once they are out.   So to say that bail causes jail overcrowding couldn’t be further from the truth.  Also, media coverage has shown us that states like Kentucky, Illinois, Oregon and Wisconsin all have jail overcrowding issues.  The interesting point there is that none of those states have commercial bail.  So I think we can cross that off the list.

Next, I looked at the issue of warehousing versus rehabilitation.  I tried to figure out where commercial bail plays a role in keeping convicted felons warehoused in jails and prisons instead of rehabilitating them.  This one was actually pretty easy to figure out.  Bail has nothing to do with warehousing or rehabilitation.  Bail is about “appearance.”  When a judge makes the determination that a defendant is eligible for pretrial release and sets a bail amount, it becomes the bail agent’s responsibility to ensure that those defendants that they do release on bail show up for ALL of their court appearances.  That is it.  We guarantee “appearance.”  To say that the commercial bail industry has failed to do their job and has caused the current problems in the system is not only a red herring, but also grossly misleading and accusatory.  The concept of bail is and always has been about getting defendants to court so that they could be held accountable.  And in the history of our modern day criminal justice system, there has yet to be a better form of ensuring a defendant’s appearance than a financially secured bond obtained through a commercial bail agent.  Every legitimate study, every independent research report and countless academic articles written on the subject of “pretrial release effectiveness” undeniably support this claim.

So if the commercial bail industry is not the problem than what is?  And then it hit me.  That question is not only the fleeting one, but also the answer.  No one knows what the problem is.  Without trying to truly get a snap shot of the make-up of the pretrial populations and understand the wide range of reasons why people are there, you can’t come up with a real solution to the problem.  And you definitely cannot accurately identify what the problem is in the first place. Additionally, if this is the case and the problem is so clearly undefined as it appears to be, than why are states like New Jersey proposing “Bail Reform” in the first place?  Why are decision makers proposing to throw millions of dollars of taxpayer funds at a problem that they do not know the actual cause or the most effective solution? I think these are all very important questions and ones that need to be answered by those looking to reform the criminal justice system and abolish commercial bail.  (In fact, this topic would make a pretty interesting blog post…hint, hint).

If we want to truly solve the ills of the criminal justice system there needs to be full and transparent cooperation between the public and private sector pretrial community.  In other words, we have to stop creating scapegoats and pointing fingers at each other and instead start solving problems with each other.The commercial bail industry is NOT THE PROBLEM in the criminal justice system.  Anyone who thinks so is not trying to solve the problem, but rather trying to discredit a legitimate and effective industry for their own ideological agenda and gain. If all the stakeholders are able to come together (including the commercial bail industry), I am extremely confident that together we could not only solve some of these challenges, but also strike a deeper balance between the social justice and criminal justice sides of the equation that everyone desires.  In this way, we can ensure that all parties are contributing to the solution in the best way possible and that ultimately both victims and defendants are getting their day in court, justice is being served and accountability is being maintained for us all.  I look forward to reading your comments.

via http://briannairinbail.blogspot.com

Bail Month – Pretrial Service Agencies on the Attack While Ignoring their Own Failures

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As we move further along in the Pretrial Justice Institute’s self-declared Bail Month, I wanted to point out a recent story out of Minnesota that I believe should open people’s eyes to the real failures of the pretrial community.  This morning the Star Tribune published an article about the 100s of people with mental illness languishing away in Minnesota jails.  Now, it is important to understand that this is not an article that the Pretrial Justice Institute (PJI) was behind.  Nor was it a story that the Justice Policy Institute (JPI) was behind.  How do I know?  I know, because it doesn’t point the finger at commercial bail as the cause and the problem.  And just for the record, they definitely wouldn’t be behind this story, because it is ultimately reporting on the failures of their own programs.  As most people know, the pretrial community (especially groups like PJI and JPI) isn’t much for discussing the real issues around the criminal justice system.  Instead these two organizations would rather spend valuable tax dollars (which they are constantly complaining about not having enough of) and private donor dollars to publically defame and disqualify one of the most effective components of the criminal justice system…and yes, I am talking of course about the commercial bail industry.

The interesting and troubling thing to me about this article (which can be viewed here… “Left in limbo, hundreds of Minnesotans with mental illness languish in jail” ) is that it really opened my eyes to the real misguided motivation of thepretrial community.  And I say misguided because, personally, I honestly believe there is a purpose and role for pretrial services in helping people with special needs, but unfortunately in reality that purpose and role goes unfulfilled.

For example, according to the article, “on any given day, the Hennepin County jail holds 100-200 inmates with severe psychiatric disorders.  That represents ¼ of the jail’s population, and they languish there, on average for three months before getting proper psychiatric care.”  Notice how they don’t mention that those people are there because they can’t afford a bail bond.

Now I am under the impression that Pretrial Service Agencies were created to assist and manage these types of populations.  They were designed to assist the truly indigent…those without means and without connections to family…those who have mental health issue or substance dependency/abuse issues.  But the problem is they are failing when it comes to this mission.  Instead they have taken their eye off the ball and focused it squarely on the commercial bail industry.  Nowhere can I ever recall seeing something about the intent of pretrial services (when it was first conceived) to be about people should not have to pay for a bail bond.  It has always been about making sure that those that need help get it.  So why today is the sole purpose and mission of the pretrial community to eliminate money bail?  Why are they so focused and committed to eliminating us as a pretrial release mechanism (especially when it has been proven time and time again to be the most effective way to ensure appearance)?  Why are they so focused, that they would spend countless taxpayer dollars designating an entire month to spreading lies and negative stories about the bail industry?  Wouldn’t it seem more appropriate to having a month dedicated to helping the people being held with mental disorders?  Wouldn’t it be more beneficial and appropriate to have month dedicated to honoring the pretrial community’s successes in helping people with substance abuse issues?  Those are the questions that I believe people want answered.  Those are the questions that I believe the pretrial community needs to answer and should be answering.

Imagine if the pretrial community focused on achieving the mission on which they were first created…to helping those that can’t help themselves.  Our jails might be a different place and our tax dollars might be going towards good as opposed to going towards public relations efforts and smear campaigns.

So here are my recommendations to both JPI and PJI.  Designate a month dedicated to improving public safety.  Reach out to the commercial bail industry and find ways to work together to make sure that the people in the system get the help they need.  Acknowledge the role and effectiveness of commercial bail and show how the public is being protected more effectively when people are released on financially secured bail.  If pretrial would to reach out in this way, I know that the bail community would reciprocate and acknowledge the role and effectiveness of pretrial services.

I honestly believe that if these things could happen, then the criminal justice system would be in a better place.  Together we can be a positive force that is maintaining the proper level of accountability for those who are not indigent and taking care of those in a smart responsible way that are and need assistance.  It is time to stop persecuting and smearing the commercial bail industry and time to start embracing us as a partner.

via http://briannairinbail.blogspot.com

Professional Appearance – Would you trust you?

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By Michael J. Whitlock, MCBA

It’s Wednesday morning in Indianapolis.  I’m scheduled to teach an hour of continuing education today to a group of property and casualty agents on the issue of bail bonds. In preparation, I got up early showered and dressed in a pair of dark gray slacks, light pink shirt, dark pink tie with a light gray sport coat with light pink strips.   What can I say; I’m not afraid of pink.

At every bail association meeting I’ve attended through the years, the issue of professional dress is almost always mentioned.  When it comes to professional attire, the bail industry gets very low marks and it most likely has to do with the hours a bail agent keeps, all 24 of them.

One never knows when the bail line is going to ring and one has to head down to the jail to meet a client or post a bond.  Most people will not take the time to put on a nicer set of clothes before heading out.  More often than not, they go with what they have on, jeans, sweatshirt, warm-up suit, etc.  With this 24/7 lifestyle it’s easy to get away from the habit of dressing professionally.

We fifty-something’s still remember when you were expected to be at work on time, stay late if you had to and work the occasional weekend day.  We also remember the requirement or rather expectation, of having to wear a tie and jacket or a nice outfit for the ladies.  That was normal then, not so much today.

I’m one of the hold outs.  I’ve found through the years, I’m treated differently when I’m professionally dressed as opposed to when I’m outfitted in jeans and a golf shirt. People give you ten points for just wearing a tie.

I still cringe when I see members of our own staff setting out to visit agents sans a tie and jacket.  In their minds, they’re dressing equal to what the client would likely be wearing.  They may be right, but it doesn’t feel right to me.

Right or wrong this is the way society is going.  Even at the weekly lunch meeting of my men’s group, of fifty people present I may be one of three wearing a coat and tie. The majority of business travelers I see are in casual attire.

Whether you wear a coat and tie or not first impressions are very important, particularly in the case of transacting bail bonds.  The general public has a preconceived notion of the typical bail agent.  Their expectation of professionalism and appearance is low.

Clients are typically, family, friends or co-workers looking to post bond for someone. They want very much to trust the person with which they are giving money and signing a number of legal documents.   For good reason, it is important to present a professional appearance and convey trust and confidence.  Surprise them.

Give this some thought the next time you’re scheduled to meet with a client.  Think about how your client is receiving you and what your appearance conveys.  Will it be trust and confidence or hesitation and skepticism?  Would you do business with you based on your appearance?  Up your game and dress professionally, it matters.

Now, I have to give a lecture on bail bonds today fully aware it is possible to look good and still suck.  Here’s to not sucking.

via view.exacttarget.com

AIA Bail Bond Surety – AIA Company News for the year 2013

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One of the most critical aspects of managing any form of state or local government is one’s ability to efficiently and effectively both protect its citizens and care for those in need. For purposes of this article, we will identify these two separate responsibilities as “criminal justice” (protection) and “social justice” (caring). When looked at individually, each of these responsibilities lack ambiguity. However, when woven together, these two elements can become quite disruptive by leading to incredible inefficiencies and ideological impasses that have the potential to break down the system completely. I believe that this troublesome combining of social justice and criminal justice has significantly contributed to the ongoing “jail overcrowding” debate. It is this specific topic of jail overcrowding and pretrial release that I would like to further discuss in this op-ed and show how the solution could be simpler than we think.

Going back centuries to feudal England, the bail bond industry was brought to this country by our founding fathers and has long been a vital component of the criminal justice system in the United States. The concept of people promising property or other monetary assets to financially secure the release of an individual from jail while awaiting trial did not only work centuries ago, but also continues to work just as effectively today. With over 2 million bail bonds posted in the system each and every year, the commercial bail industry has prided itself on a proven track record of not only getting defendants to court but also indirectly lowering recidivism rates of those individuals who are out awaiting trial. In other words, the commercial bail industry not only guarantees that our criminal justice system gets a chance to work as efficiently and effectively as possible…. in that process, they also ensure that the concept of “accountability” is maintained and that the public is protected.

Back in the 1960’s our elected officials were pushed to focus more time and resources on the other side of the system…the social justice side. Efforts were made to reform the criminal justice system to include more social justice (caring) components. In order to achieve this goal, Pretrial Services Agencies were created with the use of taxpayer dollars to facilitate and administer these “social justice” types of services/programs. In the context of the criminal justice system, these services were promoted as being necessary to help the indigent (those that have no means or social ties) get out of jail pretrial, help those with drug and alcohol dependency issues get out of jail and into special programs, as well as those who required professional mental health counseling. Initially, these programs did a great job of caring for those that had these special needs. In fact, because so many within the system needed the services of these social justice programs, more and more were released through these Pretrial Services Agencies.

Like any governmental function, the programs, perhaps predictably, grew. This growth saw those released going far beyond the “special needs” prospect and the agencies today lobby the courts to allow even persons with no special needs to be so released. This approach however relegates to relative unimportance that most necessary element: getting persons to court. Research study after research study has shown that when someone is released with a financially secured commercial bail bond they will show up for court way more often (28% more often) than someone released through a Pretrial Services Agency. In other words, the system was gradually losing its hold on accountability. As you can imagine, in the world of pretrial release, appearance rate is everything, so much so that it becomes the ultimate variable that can determine the success or failure of the system overall. For example, if no one shows up for court, then no one is being held accountable and justice can’t be served.

Today, many pretrial service agencies are still in existence (about 300 counties out of 3000 counties in the US have them). The difference however, is that today, these pretrial service programs have a different agenda…a different social purpose. Their goal is to not only help those that need help or don’t have help, but rather to become the “monitor” for everyone released pending trial. In other words, to eliminate the workable alternative: secured release. They appear to be on a mission to expand their social justice programs deeper into the criminal justice system and blur the lines between these two critical components of the justice equation. The problem with this approach and this overdose of social justice into the process is that it unbalances the two sides of the equation and unfortunately removes the most vital component of our criminal justice system…accountability. If people have no sense of accountability then the system ultimately fails. Criminal justice is all about accountability and making sure that those charged with a crime have their day in court and if found guilty are held accountable for their actions. Remove that accountability and there will be no justice in the system, especially for those it was designed to serve. Coincidentally, their growth policy violates the age old proposition: Be fair to the accused by not making the release conditions harsher than they need to be, but make them sufficiently strong enough to ensure appearance as directed.

The commercial bail industry tirelessly commits itself to ensuring that the criminal justice system continues to work as effectively as possible. By financially guaranteeing that a defendant will show up for court, the commercial bail industry guarantees the personal accountability of the accused. At the same time, the industry is not blind to the need for social justice programs. In fact, it has been extremely vocal in support of the role of Pretrial Services Agencies on behalf of the indigent and those needing help…the people the programs were initially designed for.

Applying this principle (the difference between social and criminal justice) to the challenge of jail overcrowding can be extremely revealing. If our goal is to release individuals both pretrial and post-conviction into the public and to supervise their behavior, should we turn to a method of release that was designed to help those that couldn’t help themselves (social justice), or should we turn to a solution that was designed to ensure accountability and guarantee performance (criminal justice)? Looking at it through this lens, it is easy to see that jail overcrowding isn’t a social justice issue, but rather a criminal justice issue that requires a criminal justice solution.

Even beyond jail overcrowding and looking at a broader view of the system, the same question must be addressed: Where is the balance between the need for social justice and the need for criminal justice, and who is best positioned to service the needs of each of those requirements? We believe the solutions lies with both. Let the commercial bail industry focus on those defendants who need to be held accountable and brought through the system as effectively and efficiently as possible, while Pretrial Services Agencies focus on helping the truly indigent and those who can’t help themselves. This way all stakeholders win.

Via AIA Bail Bond Surety – AIA Company News for the year 2013.

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