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New Lawsuits Challenge Bail Reform/Risk Assessment

Posted August 3, 2017 at 12:00 AM by Michael J. Whitlock - 1 Comment

Within the last sixty days, there have been three lawsuits filed challenging the constitutionality and veracity of recent changes to the bail systems in New Jersey and New Mexico.  Issues include, ankle bracelets in lieu of a bail bond, risk assessment tools and the overreach of a state supreme court.

It is well known, at the beginning of the year, New Jersey moved to a statewide pretrial release program that utilizes the Arnold Foundation risk assessment tool, a tool that is promoted as an effective means to determine if an offender is a risk to public safety or risk of flight.  Bail bonds remain a legal release option in The Garden State though a judge must jump through several hoops before bail can be required or permitted.  Largely, offenders are either deemed to be a threat to public safety and detained or, they’re considered to be an acceptable risk and released on their own recognizance.  In many cases, a defendant is required to wear a GPS ankle monitor.

On June 14, 2017, a lawsuit was filed in a New Jersey federal court by Brittan B. Holland and Lexington National against a pretrial release team leader, county prosecutor and New Jersey Attorney General Christopher Porrino.  In short, the suit alleges Mr. Holland was not permitted the option to post a bail bond in lieu of wearing an ankle bracelet which came with travel restrictions preventing him from participating in family functions outside the area.

This past Monday, the family of Christian Rogers filed a federal lawsuit against New Jersey Governor Chris Christie, Attorney General Porrino and the Arnold Foundation.  The man charged with killing Christian Rodgers had been released under New Jersey’s new bail reform rules.  The 44-page suit claims among other things, violations of the Fourteenth Amendment and product liability.  The plaintiff has requested a jury trial.

The Bail Bond Association of New Mexico is among the plaintiffs who filed suit in U.S. District Court July 28, 2017, against several defendants including The New Mexico Supreme Court.  This suit alleges violations of the Eighth and Fourteenth Amendment and seeks class action status.

In the matter of ODonnell, et al v. Harris County, Texas.  The bail system was turned on its head earlier this year, when a federal judge in Houston ruled that effectively anyone charged with a misdemeanor was free to go without posting bail.  Harris County subsequently began releasing nearly every misdemeanor offender on an unsecured bond.  It has been reported nearly 40 percent of those released on unsecured bond have failed to appear for court.  Harris County appealed the case to the Fifth Circuit in New Orleans, where oral arguments have been tentatively set for the week of October 2, 2017.

Be sure to join me at these upcoming events where I’m certain, all of the lawsuits will be discussed as well as the hard work by the bail industry to guard against the overreaching efforts at bail reform across the country.


The Tolls of Justice

Posted July 3, 2017 at 12:00 AM by Michael J. Whitlock - 0 Comments

I received a text last Friday from American Surety Company bail agent and longtime friend Harley Esparza about the cost of tolls.  Harley operates out of Corona, California.  He was sitting in “working mans” traffic while those with deeper pockets were paying the going rate of $20.85 to take the express lane home on a busy Friday afternoon.  Apparently, those who can afford it pay as much $90 in tolls during a daily commute.  That can amount to an annual toll tab of more than $12,000, too much for Harley, too much for most.

On July 1, a new gas tax of 1.9 cents went into effect in California.  This may not seem like much but California’s gas prices are routinely a dollar higher than that of the rest of the nation.  The revenue generated from this tax is earmarked to help cover the costs of rebuilding that state’s roads and bridges.  Costs that are estimated to be in the hundreds of billions of dollars.

Amid the high tolls and gas prices there is an assemblyman and senator who would like to add an additional financial burden on California taxpayers by placing at their feet the cost of supervising criminal offenders released from jail pending trial.  Approximately one third of those arrested in California each year purchase a bail bond at their own expense.

Assemblyman Rob Bonta and Senator Robert Hertzberg introduce twin bills earlier this year that would remove the cost of supervising criminal defendants awaiting trial from the defendant’s themselves to California taxpayers.  Assemblyman Bonta’s version, AB42 failed to pass out of the General Assembly last month. However, Senator Robert Hertzberg’s version, SB10 is still alive.  SB10 passed out of the Senate last month and will be heard in the General Assembly Public Safety Committee Tuesday, July 11.

SB10 is being promoted as bail reform legislation when in actuality, it is just one more step in the systematic dismantling of California’s criminal justice system and the fundamental belief of holding criminal offenders accountable for their actions.  AB109, Prop. 47 and 57 have already gone a long way in making Californians less safe.

Fortunately, SB10 is not without opposition.  Judges, law enforcement, police organizations and crime victim groups all oppose SB10.  The General Assembly has already spoken on the existing language as AB42 and SB10 were identical.  So, SB10 will have to be heavily amended, if it has any chance of passing out of the General Assembly.

The bail industry opposes SB10 because it has been proven our industry does a better job getting defendants to court than does the government.  Additionally, the cost of bail is covered by the defendants and their families, not the taxpayers.

Instead of promoting more taxpayer funded financial aid to criminal offenders, Assemblyman Bonta and Senator Hertzberg should simply acknowledge the fact that life is full of inequities.  Being rewarded for bad behavior is not a constitutional right.   We are blessed to live in the United States where we enjoy freedoms and liberties that afford us the opportunity to better our situations.  Anyone who works hard and operates within the law can put themselves in a position where they too can afford to drive in the fast lane.  

Vote for accountability.  Vote NO on SB10!

One Down, One to Go

Posted June 2, 2017 at 12:00 AM by Michael J. Whitlock - 0 Comments

CA AB42 Fails to Pass, SB10 Still Alive

What a night it was last evening.  Many of us were watching Game 1 of the NBA Finals on one device and the California General Assembly on another.  The Golden State Warriors won their battle against LeBron James and the Cavaliers while all of California won when AB42 failed to a pass out of the General Assembly.

AB42’s doppelganger in the Senate is SB10.  Senator Hertzberg’s SB10 passed out of the Senate earlier this week with little opposition.  The senator’s partner in bail reform Assemblyman Bonta, was not as fortunate.  Despite his efforts, Bonta’s AB42 went down late last night in a 36-37 vote.  He lost by one vote.

What a tremendous effort by the lobbying team and everyone and every organization that was involved with seeing AB42 defeated.  That said, we cannot rest on our laurels, SB10 is still alive and kicking and very much a threat.  The upside is, SB10 must travel through the same General Assembly where AB42 just met its fate. We need to continue to expand our support and opposition to SB10 in the General Assembly to ensure that SB10 does not become law.

What’s next?  SB10 has been sent over to the General Assembly for consideration where it will be assigned to committee.  SB10 is not expected to be heard in committee before June 15.

How can you help?  Continue to provide financial support to the associations working on behalf of bail and victims of crime.  Continue to inform your friends, family and associates to contact their Assembly representative and ask they oppose SB10.

You can also help by encouraging your associates to post only positive comments about the bail industry and informed statements as to why SB10 is bad for California.  Posting derogatory comments and personal attacks against supporters of SB10 is harmful to our overall efforts.  Any such postings should be deleted immediately.  Keep it clean and articulate, we already have the Constitution and common sense on our side.

The Warriors won Game 1 last night but they know it’s a seven-game series.  We can celebrate last night’s defeat of AB42 for a few hours, but SB10 still looms.  Stay positive.  We will keep you posted on further developments.  

Nevada Governor Veto's Bail Reform Bill

Posted May 29, 2017 at 12:00 AM by Michael J. Whitlock - 3 Comments

Last week Nevada Governor Brian Sandoval returned AB136 unsigned, to the Speaker of The of the Nevada State Assembly.  Vetoed.  AB136 was the result of recommendations made by a Nevada Supreme Court Committee to Study Evidence-Based Pretrial Release.  The committee was chaired by Justice James W. Hardesty.

Governor Sandoval wrote in his May 26, 2017 letter, “No conclusive evidence has been presented showing that the risk assessment methods proposed by AB136 are effective in determining when it may or may not be appropriate to release a criminal defendant without requiring bail.”  He went on to write, “It is not clear that the provisions of AB136 will enhance the ability of Nevada’s judges to make these determinations (bail) in a manner that balances the interests of justice and public safety.”

Nevada was the second state in the last two weeks to reject the concept of a risk assessment tool and eliminate bail schedules.  California is still considering whether the release of hundreds of thousands of pretrial defendants without bail based on an eight-question risk assessment is right for their state.  Furthermore, they are considering whether eliminating bail schedules make it easier for criminal offenders to post bail.

California legislators should give weight to the decision made by the Governor of Nevada and vote against its bail reform measures, SB10 and AB42.  Leave bail decisions to the discretion of judges and leave the task of ensuring defendants appear for trial to experienced and surety back bail agents.  A civilian with a clip board and eight questions is not suitable to make decisions on whether someone will appear for court.  A preset and fair bail schedule allows those who can post bail to do so expeditiously and get back to work and family while preparing for trial.  Those who cannot afford bail should have the ability to request a bail hearing before a judge within 72 hours of arrest.

The California Senate will probably hear SB10 on the floor this week.  Last Friday, Senate President Kevin De Leon, this past Friday, said the Senate aims to hear 80 bills on Tuesday and 100 bills on Wednesday.  AB42 passed out of Appropriations Committee and is likely headed to the floor of the General Assembly this week, as well.

More and more legislators across the country are figuring out that the concept of a “risk assessment” tool is not some miracle cure.  It’s simply a marketing tool to expand government pre-trial release programs and eliminate the commercial bail industry. 

The rejection of these criminal welfare efforts in places like Nevada, Texas and Connecticut does not bode well for Senator Hertzberg and Assemblyman Bonta who have demonstrated an unwillingness to negotiate on their respective measures.  They have made it known, their concerns lie with the interests of criminal offenders and not California’s crime victims and law-abiding citizens.

Nevada Governor Sandoval made it quite clear in his Veto letter, there is “no conclusive evidence” risk assessment methods work.  Let’s hope California legislators get the message.

SB-10 Clears Appropriations

Posted May 26, 2017 at 12:00 AM by Michael J. Whitlock - 5 Comments

It wasn’t an hour after SB-10 cleared the Senate Appropriations Committee yesterday on a 5-2 vote, I began getting phone calls from California bail agents.  Is this it, are we done?  Are we out of business?  No, we’re not done and we’re not out of business.  While California bail agents and surety companies operating in the Golden State do have a huge fight on our hands, we can prevail.

Proponents of these two criminal welfare bills SB-10 and AB-42 are probably feeling good today, their side advanced the ball.  There are still many plays left before either of these two measures can cross the goal line and become law. There is an adage in legislative circles, it’s easier to kill a bill than to pass one.  Our aim and the aim of many other stakeholders within California’s criminal justice system is to kill these toxic measures.

I wrote an article a couple days ago about Texas and how their legislature has elected to not perpetuate the desire by some to eliminate the idea of holding criminals accountable for their actions, to not reward bad behavior.  Texas bail agents just went through a process California bail agents are going through now, fighting legislation that could put the bail industry out of business.

Ten weeks ago Texas bail agents were very concerned they were finished.  Rather than sit back and whine and fret, they took substantive action to protect their place in the criminal justice system.   They contacted their legislators, contributed to PBT or other entities acting on their behalf and went to Austin when directed.   They fought and fought hard.  Assuming an Acme anvil doesn’t fall from the sky before the Texas legislator concludes today, they will have won their fight.  California bail agents must show similar resolve.

It is projected both SB-10 and AB-42 will be voted out of the Senate and Assembly respectively by the end of next week.  Both bills will then be sent to the opposite chamber where they must start the process over again; i.e., committee hearings, etc.  Every California bail agent must join the fight if this battle is to be won.  Contact CBAA, GSBAA or ABC to see how you can contribute.  Financial contributions are as important as your relationship to your local legislature and your ability to travel to Sacramento at a moment’s notice.

These legislative fights always seem daunting and unbeatable.  The legislators have the bully pulpit and seem to have everyone listening and believing every word uttered.  The reality is not every legislator is in agreement and those are the folks we need to reach.  The advocacy team assembled by the bail industry has been doing a remarkable job in Sacramento.  They’ve been successful in getting legislators to see the other side of the argument, the true facts.  Legislators are beginning to listen.

What can you do today?  Call your senator and assembly representative and ask them to vote no to SB-10 and AB-42.  Call your surety company to make sure they are engaged and participating in this fight.  Next, contact one of the agent or surety organizations and make a financial contribution.  How much is it worth to you to stay in business?

While the fight is far from over, the only way to win the battle is to fight the battle.