The War on Bail Bonds

[CountDeMoney]

As Charles Barkley would say, "Turribull.  Juss turribull."

New Jersey Is Front Line in a National Battle Over Bail
By ALAN FEUER
AUG. 21, 2017
The Failing New York Times

Less than a year after New Jersey established a sweeping new law that all but eliminated cash bail, the state has found itself facing a challenge familiar to others that have overhauled their bail systems: an energetic legal attack from the bail industry.

In June and July, two lawsuits were filed in Federal District Court in New Jersey challenging the statute, the Criminal Justice Reform Act, which took effect on Jan. 1. While the suits have taken different legal tacks, they do have something in common: one was filed by a large corporate bail underwriter and the other has received support and publicity from professional bail agents. Both parts of the bail industry have said that their profits have plummeted since the law took effect.

New Jersey is among a handful of states where courts and government officials have begun in recent years to modernize — and in some cases, abolish — the assignment of cash bail, which critics say discriminates against defendants, many of them black and Latino, who cannot afford to pay. The New Jersey law, which was designed to keep the poor from languishing in jail — especially for minor offenses — has put the state at the forefront of a growing national movement toward major change and was notable for having the support of its Republican governor, Chris Christie.

But the movement has occasioned resistance from the bail industry, which has launched an assertive effort to preserve the practice — and its own commercial interests. The Bail Bond Association of New Mexico, for instance, filed suit against the state on July 28, challenging a set of State Supreme Court rules governing bail that were passed just weeks before.

In January, Paul D. Clement, a lawyer who once served as United States solicitor general, testified on the industry's behalf at a hearing in Maryland against that state's new rules. Lawyers for the industry have also submitted amicus briefs in recent months in cases in Atlanta, Houston, New Orleans and San Francisco, trying to stop civil rights groups from suing in the federal courts to overhaul bail in those cities.

Concern about the changes has reached such a pitch among the country's bail bondsmen that the president of the Professional Bail Agents of the United States, an industry trade group, issued what she called "A Declaration of War" in the group's August newsletter.

"We have the responsibility to stand against the forces of tumult and division," wrote the president, Beth Chapman, who is married to the former star of the TV show "Dog the Bounty Hunter," Duane Chapman. "We must stand united and strong, willing to fight back and wage war against the special interests who would destroy law and order in this country to advance their radical agenda."

In the middle of the fight, the two suits in New Jersey have attracted attention not only because they are especially aggressive, but also because they may become a bellwether for other states that are trying to fend off attacks on bail reform.

"I think the reason you're seeing such intensity by the bail industry to undermine reform in New Jersey is that it will have an effect on the national landscape," said Alexander Shalom, a lawyer for the American Civil Liberties Union who is helping state officials defend themselves in one of the cases. "The industry is upset about losing business in New Jersey. But the bigger problem is: If there's successful reform in New Jersey, it can be replicated elsewhere."

The first New Jersey suit was submitted by Mr. Clement in June on behalf of the Lexington National Insurance Corporation, a bail underwriter in Maryland , which, like others in the field, assumes the ultimate financial risk from local bail bondsmen if defendants do not appear in court. Filed as a class action, its named local plaintiff is Brittan B. Holland, a New Jersey man who was charged in April with assault after being accused of beating up two patrons of a tavern in Winslow Township during a fight over a football game.

According to the suit, Mr. Holland wanted, and had the means, to post cash bail with the help of a bondsman, but under the new state law he was released from jail after being fitted with an electronic ankle bracelet — or what the suit referred to as "a modern-day scarlet letter." This led to "severe deprivations of liberty," the suit claimed, including home detention, the fact that the government could track Mr. Holland 24 hours a day and a requirement that he report to court officials every two weeks. Oral arguments in the case will be heard in Federal District Court in Camden on Tuesday.

The second suit was filed on July 31 by June Rodgers, whose son Christian Rodgers died in April after being shot 22 times in Vineland by a felon who had been released on bail for a weapons violation. In the suit, Ms. Rodgers claimed that the state's new bail law "created a system where African-Americans in New Jersey," like her son, received "disparate treatment." The suit also blamed Governor Christie and the Laura and John Arnold Foundation, a social-justice organization that created a tool for assigning bail that was incorporated into the law, for violating her 14th Amendment due process rights, including "the right to companionship with her son."

The day the suit was filed, the Chapmans appeared at a news conference in Trenton announcing the litigation. Mr. Chapman stood in front of the cameras attacking New Jersey's "dangerous, fake reform" of bail, which, he said, had been in effect for 200 years. Ms. Chapman added that "people are not in jail because they're poor — they're in jail because they broke the law." In pursuing her case against the state, Ms. Rodgers is being represented by Nexus Caridades, a pro bono law firm that is funded by a company called Nexus that offers services to immigrants who need bail.

Jeff Clayton, the executive director of the American Bail Coalition, a national organization of bail underwriters, questioned the premise of the changes by saying that the various laws and rules across the country were damaging public safety — a notion that officials in New Jersey and elsewhere have disputed. Mr. Clayton also said that there were constitutional problems with the overhaul efforts not only under the 14th Amendment, but also under the Fourth Amendment, which prohibits unreasonable searches and seizures, and the Eighth Amendment, which guards against "excessive bail."

But Alec Karakatsanis, a lawyer for Civil Rights Corps, a nonprofit organization that has been involved in several of the bail cases, called the cash-bail system "a catastrophe," adding, "It's enormously unjust and enormously costly."

"And now that's it being scrutinized by people and the government," Mr. Karakatsanis said, "I don't think the industry's efforts to fight this movement will succeed."

[Berkut]

Well, certainly in the complex and contentious issue of bail and it how it impacts civil liberties and perverts justice, the concerns of bail bondsmen and companies who make a profit of of the current system should be given great weight by the court.

[The Minsky Moment]

ACLU filed a brief against the plaintiffs in the NJ class action.  While their position is justifiable I wonder whether it was wise.  Among other things they are arguing that Lexington National lacks standing, which seems like a dangerous argument for the ACLU to make, since in virtually every other litigation they have an interest in expanding the scope of third party standing. 

If you take a more maximalist position on constitutional rights, which is what the ACLU is presumably supposed to do - the plaintiff's position that the 8th amendment implicitly presumes a right to bail has merit.  That's significant because the main plaintiff here is not Lexington National, but an individual suspect - clothed with the presumption of innocence - who is being subjected to significant limitations on his freedom despite being ready willing and able to post bail.

The ACLU brief makes some interesting policy arguments about problems with the commercial bail bonds industry.  Those arguments may have merit, but not sure the ACLU should be making them.  Where there is an individual being subject to some constraint on his freedom by the government in a criminal case, and is petitioning for relief as a matter of constitutional right, IMO the ACLU should think long and hard before taking the other side.

[CountDeMoney]

Well, certainly in the complex and contentious issue of bail and it how it impacts civil liberties and perverts justice, the concerns of bail bondsmen and companies who make a profit of of the current system should be given great weight by the court.

Provided that the court also realizes that the state is not acting out of any real sense of altruism or constitutional justice but, in a political environment where taxes can only be cut and never increased, it has identified a readily available revenue stream it can assume for itself.