Fallacy in the Debate between Pretrial Services and Surety Bail
Tony Sylvester’s response to an article written on bailbonds.com about surety bail.
This article below rightly points out what is becoming a huge fallacy in the debate between pretrial services and surety bail, which is what exactly the purpose of bail bonds is, both from a historical and a legal standpoint. As luck would have it both answers are the same: to ensure the appearance of the defendant at all stages of the legal process. Anything else is a secondary concern strictly speaking. Many states (Ohio being one of them) have amended their state constitutions in order to allow judges to Consider other factors when setting a bond, such as the risk a defendant might pose to the community. These may influence the amount a bond is set at by a judge; however, the purpose of the bond itself is and always has been to ensure the defendants attendance in court.
Jail overcrowding and similar issues are handled by a joint effort of all branches of local and county government from the Sheriff to the judges and in-between. Such tools as electronic monitoring and emergency release for low level nonviolent offenders has always been and will remain and option that can be used to ease economic concerns. When a judge decides to set a bail on a defendant it is not to punish nor to single out, it is simply to make sure that there will be responsible parties that have an interest in seeing the defendant fulfill his obligations. Furthermore, all available data shows that the cash bail system works, having a far superior appearance rate than any other form of bail ever used.
This is not to say that the risk assessment and pretrial model advocated in the article doesn’t have its place because it certainly does. Low risk, nonviolent, and first time offenders are all good candidates for this model of bail, used in conjunction with electronic monitoring and check in’s with a local pretrial service program. Many repeat traffic offenders (excluding DUI) also would be ideal for release under these types of program as their likelihood of long term flight is more minimal as is their potential risk to the community at large. For DUI offenders a special dui bail bond is available.
At the core of our criminal justice model in America is the deterrence theory of crime. The number one principle on that theory is that in order for punishment to be effective it must be administered swiftly. The cash bail system in based on speed as bonding companies have all the incentive to apprehend and return defendants to custody as quickly as humanly possible. This eliminates waste in the criminal system, saving the system money in less delays as well as allowing punishment to be delivered swiftly which allows the model to operate at maximum efficiency.
This is what the “free” publicly-funded pretrial release charlatans try to pass off as neutral, unbiased, and “evidence-based” when they peddle their baloney.
I recently received a link to a blog written by a disingenuous lying twit named Tim Schnacke. Schnacke wants to eliminate financially secured bail. That’s certainly his prerogative and he is not alone in his misguided beliefs. There are a number of folks — invariably on some version of the public dole — who think financially secured bail is somehow wrong. They try to create data to support their position but, lacking that, they typically fall back on their fundamental belief that what we do for a living as bail agents is somehow morally wrong. They don’t like us. They don’t like that we earn a living (“money bail”). If you scratch hard enough what they really don’t like is “caging” people. (This is their latest euphemism for jailing criminals.)
Tim Schnacke and the folks like him advocate that when a police officer makes an arrest for a crime — immediately following the arrest — the officer should apologize to the accused for society’s many shortcomings. The officer should also express remorse for the inconvenience of having had to endure the arrest. After issuing a sincere and heartfelt apology, the police officer should then uncuff the accused criminal and issue to them a written notice to pretty please appear in court for their trial. What could possibly go wrong with that?
But I don’t begrudge Tim Schnacke for being a misguided and naïve moron. He, of course, holds quite a different opinion of himself (taken from his website):
“I think I’ve had plenty of formal education, and I hope I’m not forced to get any more (although I’m taking two classes on Coursera!)
And even though he wants to eliminate my livelihood, I don’t have any qualms with him running his outfit “The Center for Legal and Evidence-Based Practices” and hustling up as many handouts and grants as he can. (I am not sure how he makes a living but panhandling on the internet is part of the mix.) What does irk me, though, is that Tim Schnacke consistently and repeatedly claims to be neutral.
“The Center is neutral and nonpartisan, but articulates positions when they are supported by unbiased research and laws with firm constitutional bases.”
On his website, he writes:
“I’m Tim, a neutral voice in the world of bail reform and pretrial justice.”
Astoundingly, he italicizes and bold faces “a neutral voice,” presumably to emphasize his shameless lie.
Does this well-educated (“I have a law degree, a masters of law degree, and a masters of criminal justice degree in addition to the two degrees that I got in college!”) dolt sound “neutral” to you? Please read the following excerpts from his blog and website and make a determination as to whether he is unbiased and neutral.
“The secured money bail system not only causes countless harms to society, it defies virtually every notion of American freedom and equality that we defend in our founding documents. Its very existence makes us worse.”
“The American bail system hasn’t worked since 1900.”
“This generation of bail reform, as most of you now know, is not so much a fight against bail agents as it is a fight about money at bail – which is why the statement on the agenda of all the “threatening arguments against the bail industry” is so misleading.”
“with insurance companies making money for doing nothing”
“when people are fully educated in bail, they automatically move toward change, and that change involves adopting a risk-informed system of pretrial release and detention (both for assessment and supervision) using less or no money.”
“the current system – with all of those huge amounts of money based on charge – is fundamentally flawed”
“the idea of a bail schedule being anything less than arbitrary and completely irrational is ludicrous.”
“As my dear friend’s delightful middle school daughter might respond, “OMG!” Doesn’t discriminate against the poor?! Are you nuts? It’s a money-based system, for goodness sake. Bail agents only help defendants with money.”
“we have simply spent too long not thinking money bail wrong”
“There may be a place for private pretrial in America, but the window for finding that place is rapidly closing.”
“Personally, I don’t think money is ever appropriate, but for those judges having a hard time with that idea, using an unsecured bond at least gets the defendant out of jail quickly”
“If I were in the bail insurance business, I would stop trying to pick apart the Arnold study and start trying to figure out how to change my business practices so that defendants deemed safe enough for release would at least get released quickly, even if that meant I might not make as much money.”
“They are a business, after all, supported by big corporate insurance companies with a fiduciary duty to make money despite whatever erosion to justice that may cause.”
“We need complete reform, and we can only accomplish that reform by intentionally leaving out many of the people responsible for the current broken system.”
“The other day I had an older gentleman who had been involved in criminal justice for decades try to argue with me about what he saw were the benefits of secured money bail.”
Does any of this poppycock sound remotely “neutral” or “objective” to you? Schnacke is a poster child for opponents of accountability in pretrial release practices. When the data doesn’t support their beliefs, these hypocrites shamelessly lie and change their terminology. (“Calling it ‘Risk Assessment’ will work!”) This is why Schnacke is so adamant in his claims that bail is not about appearance. (“The purpose of bail itself is to release people!”)
If Schnacke can persuade gullible policy makers that bail is about release and not appearance then pretrial release programs can compete effectively with private bail. Any program — even inept ones run by government employees — can release people from jail. That’s the easy part. The answer to jail overcrowding according to these morons? It’s simple. Just release defendants from jail and ask them to please appear in court for their trial date. In Schnacke’s fantasy world, bail is solely about releasing people from jail. That has never been the purpose of any of the thousands of bail bonds I have been involved in posting. Each bail bond we post is a commitment and an obligation to have the defendant appear in court. Failing in that obligation, we risk paying a substantial penalty to the state.
Hypocrites like Schnacke claim that bail agents don’t arrest bond skips and return them to court following a non appearance. (“I have research to prove it!” he claims.) Have you ever met a single bail agency owner who has not located, apprehended and surrendered their bond skips back to the court? Have you ever met a bail agent who hasn’t on occasion had to pay a bond forfeiture because he or she was unable to locate a fugitive in time? I have not.
Private bail works because independent committed bail agents are financially accountable to the courts for the appearance of accused defendants. To protect their financial guarantee, bail agents enlist the support and participation of the accused defendant’s family members, friends, and employers to help ensure their appearance.
Pretrial release on private financially secured bail works. Tim Schnacke? Not so much. In lieu of actual work, he prefers to panhandle on the internet and try to convince anyone who will listen that our honorable profession ought to be eliminated and replaced with ineffective government programs. Here then is my “neutral” and “objective” informed opinion of Tim Schnacke: He is a liar and a hypocrite.
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