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How Will the CA Bail Industry Fund a No-SB10 PR Campaign? Asking for a Friend

Posted January 4, 2019 at 12:00 AM by Michael J. Whitlock - 0 Comments

Governor Brown signed SB10 on 8/28/18. Even though SB10 is a fragile, ill-advised, unfunded, industry killing, bureaucracy birthing, unconstitutional piece of crap, it is still set to become operative 10/1/19. That is, until the Referendum to overturn SB10 is certified. Once this is done SB10 will lay dormant until the next statewide election to be held on 11/3/2020.

It should not be news to you the projected cost of the PR effort to get Californians to vote No to SB10 is a staggering 10-15 million dollars. The cost of the signature campaign to get a referendum on the ballot to overturn SB10 is a drop in the bucket by comparison.  How will the millions needed for the PR campaign be raised? Will a hat be passed among bail agents and surety companies? Can we ask George Soros to underwrite the costs? Or, is something more drastic and unpalatable needed?
Like most sureties and large retailers operating in California, American Surety Company contributed our fair share of the cost to launch what would be a successful signature campaign to place a No-SB10 referendum on the ballot.  A respectable portion of ASC’s contribution came from our bail agent partners. I personally made the calls and I was not shy about asking for meaningful contributions. I was not asking for $500, I was asking for $5000. “You want $5000!” I was asked.  Yes, I asked each of them, “if someone kidnapped your business today, stopped all your revenue and ended your livelihood would you be willing to pay $5000 to get it back?”  Because, I said, “SB10 is putting you out of business!” Most recognized the real threat and agreed to contribute. As we all know, their contribution was not in vain. The first step of the referendum process is projected to be approved for the 2020 ballot before the end of this month.
Next will come the second step of the process, promoting the No-SB10 referendum. If California’s bail industry is going to amass enough cash to fund a meaningful No-SB10 PR campaign in mid-2020, we must start planning now. Those of us participating in the costs of the PR campaign can expect to pay as much as five times the amount paid for the signature campaign. It’s a daunting task, I know.
In addition to funding needed for the PR campaign, surety companies are or should be weighing the risk of continuing to write new business in a state where a law has been passed that eliminates the bail market. There is a recent example of this occurring and that is New Jersey. New Jersey passed legislation in 2014 which implemented a statewide pretrial release program that went into effect 1/1/2016. During that two-year period there was an assumption among the bail industry, state legislators would come to the realization New Jersey could not afford to create a statewide bureaucracy that would cost hundreds of millions of dollars and the law would be revised. Many surety companies, including American Surety Company allowed their agents to continue writing bail up to 12/31/15. The legislature did not amend the law and it went into effect as planned on 1/1/16. The impact on the New Jersey bail industry was immediate and devastating. Unlike California, New Jersey does not have a referendum option to overturn this law. The bail industry is effectively dead in New Jersey.
In the wake of the new law, bail agents soon shut their doors. They could no longer afford to pay rent, retain staff to manage clients or hire recovery agents to mitigate losses. When loss reserves were depleted, surety companies stepped in and paid losses in the millions during the years that followed. 
As my friend Charlie White from Tennessee is known to say, “I only say all that to say this”, with California having passed a bill that puts bail agents out of business, how are surety companies planing to ensure sufficient funds will be available to cover their share of the PR campaign?  How will they simultaneously manage the risk of continuing to write business in a state where the governor and legislators have put a date certain on the end to commercial bail writers? Our company has delivered a plan to our agent partners on what must be done collectively to ensure we do our utmost to overturn a really bad law before it goes into effect. If you’re not writing through American Surety Company, what is your surety’s plan? Asking for a friend.

Stop SB10 Signature Campaign Is On Pace

Posted October 9, 2018 at 12:00 AM by Michael J. Whitlock - 0 Comments

After Governor Brown signed SB10, August 28, 2018, the California bail industry took on the daunting task of collecting 565,000 signatures (3% of the turnout of the most recent election) in a statewide signature campaign. The deadline for submission is November 26, 2018.
The team hired by the coalition of surety companies operating in California have been working double time collecting verifiable signatures from registered California voters. Bail agent volunteers have been doing their part to collect signatures in their market. It's been a team effort and we're making great progress!
If you are part of the volunteer team it is import to for you to do two things 1) make sure you do not co-mingle signatures from different county residents on one signature form: keep counties separate and 2) submit your forms to the collection center often (at least once a week) so they can be processed. They are no good to anyone accumulating on your desk. Mail your forms to 1817 Capitol Avenue, Sacramento, CA 95811.
You may have read in the news about cases of signature fraud. This is not a new concern for the paid signature industry. Be sure to report any information about signature fraud to the authorities.
If you would like to learn more about the Stop SB10 referendum effort,sign-up for the American Bail Coalition Conference in Las Vegas October 10-11.


Posted August 16, 2018 at 12:00 AM by Michael J. Whitlock - 0 Comments

The 5th Circuit Court of Appeals yesterday released a critical decision on a motion for stay filed by the Harris County Criminal Court Judges, defendants in ODonnell v. Harris County Judges. A ruling that was filed August 14.

Harris County has spent millions of dollars providing a defense for their 14 judges in a case that is currently on appeal in the 5th Circuit Court of Appeals out of New Orleans. The 5th ruled in favor of the Judges and granted a stay of the trial court’s preliminary injunction which thus far has permitted thousands of arrestees to be released with no bail, resulting in a near 50% failure to appear rate.
I don’t have a law degree or a shingle, but I recognize a positive ruling when I see one. Our side has boiled down the argument against “poor people languishing in jail pre-trial” to this; let those who can afford bail post bail while those who are unable to post bail should receive a bail hearing within 48 hours of arrest. The 5th’s order underscores this argument in this passage:
The remedy to automatic detention of the indigent is more process to allow them alternatives. Those who cannot afford the set bail are entitled to an individualized hearing within 48 hours to determine whether lowering that bail would be release on sufficient sureties.
So, the court is saying, a remedy has been provided to those claiming to be unable to afford bail. That remedy is a hearing within 48 hours of arrest. The court went on to say:
Now that the requirement of a hearing is in place, the only remaining contention about the 48-hour window concerns only the inability to afford bail. And that is an equal protection claim consistently rejected on rational-basis review.
The individualized hearing imposed by the district court as modeled on the panel’s suggestions is sufficient to cure the automatic imposition of bail. It does so in a way that is rationally related to the state’s interest in securing the appearance of the arrestees.
My take away is simply this; if you have a bond schedule in place, those that can post bail will do so relatively quickly which frees up bed space and saves the county money while those who are unable to afford bail will be granted a hearing within 48 hours to have their bail reviewed. Perfectly fair and logical and serves both those who can afford bail (which the order says this group should also not be discriminated against) and those who cannot afford bail as set.
The 5th has ruled in the judges' favor on the motion to stay enforcement of the district court’s preliminary injunction, the appeal itself is ongoing. The 5th concludes:
But there is, “no such…fundamental substantive due process right to be free from any form of wealth-based detention.”
If only this decision could have been made within 48 hours of the ODonnell case being filed, Harris County would have saved millions of dollars and would not have a criminal justice catastrophe on their hands. With this ruling by the 5th Circuit, the situation in Harris County should see immediate improvement.

Spelunking in the Caverns of the Criminal Justice System

Posted July 13, 2018 at 12:00 AM by Michael J. Whitlock - 0 Comments

Like the rest of the world, I watched with fascination and anticipation while 12 Taiwanese boys and their soccer coach awaited rescue from their pitch-black safe-haven 2.5 miles deep into a mountain.  An ill-timed spelunking expedition.

What a feeling of exhilaration there must have been among the young boys when, after 14 days of silence and darkness, a light from two British divers broke through the water.  The bravery displayed by the stranded boys and their coach, the heroism demonstrated time and again by the international team of frogmen renews one’s faith in the human spirit.  Proving once again, when people are faced with a crisis, cooler heads and open minds can solve just about any problem.

In many respects there have been groups of would-be reformers conducting ill-advised cave diving into the criminal justice system here in the United States.  Embarking on an ideological journey with no real plan in place should their excursion run into trouble.  In fact, the possibility of their plan failing was/is not even a consideration.

The catch and release initiatives set up in many cities and counties across the country, San Jose, CA, El Paso and Houston, TX and Noblesville, IN to name just a few, are failing miserably.  Jail populations are up, as are failures to appear. As a result, confidence and respect for the criminal justice system is rapidly eroding.

On the bail industry’s side, there is general agreement several pre-trial release options are needed to have an effective pre-trial release system.  Among these are unsecured release, release on a secured bail bond and preventative detention for some offenders who simply present too much of a risk to public safety to be released from jail before trial.

On the reformers side of the equation, there is only one solution – free to go! They want to get rid of the concept of detaining in lieu of bail, holding people accountable to appear at trial and requiring those that can afford bail to post bail.  This plan brazenly disregards the rights and best interest of crime victims, public safety and a society that was built on the rule of law.

Reformers would have the law-abiding citizens, city and county officials and state legislators believe only people charged with low level offenses, who cannot afford to post bail, are occupying our jails.   The woe-is-me argument on behalf of criminal offenders.  Sure, there is going to be a certain number of offenders who may fit that description and these same people would likely qualify to be released on their own recognizance under current law.

What confounds me is the reformers include among those they seek to help, Wall Streeters, One Percenters and Corporate Big Wigs, who should also be granted free bail.  Everyone should be released!  Why is it such a foreign concept to reformers, to permit those who can afford to post bail, post bail? This would permit appropriated taxpayer dollars to be specifically directed towards those offenders who have proven to be unable to post bail.  Would it not be the case that more people would get the assistance they need?

The criminal justice system has many caverns and one should not go spelunking without an exit strategy.  Using proven strategies that have been in place for decades should always be open to consideration.

Rio Grande Valley Agent Association Making its Mark

Posted April 18, 2018 at 12:00 AM by Michael J. Whitlock - 0 Comments

When we think of associations for the bail industry, we tend to think of national groups like ABC and PBUS or state associations such as CBAA, PBAI, PBT or SCBAA. One must really think hard to come up with county level bail associations. I can think of San Diego, Orange and Santa Clara counties in California or Tarrant and Harris counties in Texas.  There is one other Texas county association way down in The Valley of the Rio Grande showing some grit, the Hidalgo County Bail Bond Association.

McAllen and Edinburg are the two largest cities in Hidalgo County with a population of nearly 850,000 residents. They are situated in what is known as The Valley, a four-county region which sits on the Rio Grande River across from Mexico.

Former Speaker of the House, Tip O’Neill is credited with saying, "all politics is local." The HCBBA has taken this assertion very seriously under its current president Rene Anzaldua.

Rene opened his bonding company, A-Quick Bail Bonds in 2003. I spent some time with Rene last week when we both attended the PBT membership meeting in Austin. Rene shared with me some of the initiatives the association has undertaken.

Rene said, recently retired bondsman Tillman Welch was a force of nature everyone relied upon to speak for the local bonding community. Rene, who was elected HCBBA president in January, knew he had big boots to fill if he was to lead the association into the future.  It was critical that the HCBBA maintain the same presence with the local criminal justice community.

Together with the help of HCBBA Vice President, Rene Ortega and Secretary, Irma Montemayor, they went about getting things done.

The first order of business was to increase their membership (which they did almost immediately) recruiting 22 of the 26 bonding companies doing business in Hidalgo County.

They wanted to build on the Meet and Greet with local judges and clerks held last October. At that event they presented each justice of the peace with a Texas flag that had flown over the state capitol.  Since then HCBBA has invited a local official to speak at each of their regular meetings.

Members of the HCBAA participate in local fundraisers revolving around golf outings, fishing tournaments and skeet shooting events. The HCBBA recently sponsored and members participated in the Annual Walk for Crime Victims and Survivors. The members recognize how the service they provide to those arrested for crimes also help victims by ensuring these individuals appear at trial.

Establishing relationships with other representatives of the criminal justice systems has afforded HCBBA members to provide a better understanding of how the bail system works, its effectiveness and benefits to the community.  Conversely, HCBBA members obtain a better understanding of the perspectives of law enforcement and members of the judiciary and court clerks.

Now when these same officials are approached by outsiders with grandiose schemes of risk assessment tools, computer algorithms and costly government pretrial release agencies, they can put those lofty claims into perspective.  Hopefully, they will send these solicitors on their way to the next town to sell their goods elsewhere.

Time and time again we find a key to stopping adverse legislative initiatives at the state capitol is a senator or representative who has a true understanding of the efficacy of the commercial bail industry solely due to the relationship established by a bail agent residing in their district.

If you're looking to start a county bail association or having difficulty getting your organization focused, reach out to the HCBBA. I’m sure they would be more than willing to provide some insights on where they've been successful.