PRE-TRIAL AGENCIES: ARE THEY LEGAL?
By Jerry Watson
The National Association of Pretrial Service Agencies (NAPSA) is dedicated to growing the number of local pretrial service agency offices and eliminating their perceived competition, the commercial bail industry. NAPSA openly advocates through one of their published guiding policies that there should be no compensated surety. In other words, there should be no bail industry.
At NAPSA’s recent annual meeting in Milwaukee, some 450 attendees gathered to encourage one another to pour more energy into their “eliminate commercial bail” objective. One of their motivators was Wisconsin State Representative, Fredrick Kessler, who bragged that he was responsible for closing down the bail industry in Wisconsin and was saddened that this action did not travel across the rest of the country. He encouraged his audience to make that happen by finding political reformers and getting the eradication movement started. In response to a question about how to get state legislators to abolish bail he said, according to one report, “Fight dirty.”
As an example, he told how he had snookered the bonding industry in his state. That year, near the end of the legislative session and after the bondsmen believed any danger had passed, language to abolish commercial bail in Wisconsin was slipped in on a “must pass” budget bill. In other words, bail and all its public safety and economic benefits to the people of Wisconsin was not lost because it did not provide great value; it was lost by political trickery and manipulation.
Those who seek our industry’s demise charge one another to engage in such practices, justifying “fighting dirty” because “it’s okay to play dirty for the public good.”
And who is this “public” for whose “good” they campaign? It is persons charged with crimes against the people of the state. The fact that they do not recognize the public safety interests of all innocent members of the community is regrettable indeed, but it is understandable once we examine their basic underlying philosophy. It is this: The only reason the defendant is in jail is because we, society at large, have failed that person. His bad behavior is our fault. If we had been all that we should have been for him, he would not have been arrested in the first place. He is there only because we, who do not commit crimes, let him down. Their logic goes like this:
Major premise: Society is fully responsible for the behavior of the individual.
Minor premise: The defendant is in jail.
Conclusion: He should not have to put up bail to be released. We should take care of that for him.
This analysis answers all the questions one might have about NAPSA, its devotees and their intentions. It tells us where they come from, why they want to eliminate the bail industry and why they will, as their heroes advocate, “play dirty” in order to see us gone.
The fallacy in their rationale comes from their refusal to recognize that there is another “public” and that this public is also entitled to have its interests recognized and protected. This other “public” is all of those people who are responsible enough in their behavior not to have been incarcerated based upon probable cause of having committed a crime.
And this gets us to the point of potential illegality. Let us consider a few things.
The Eighth Amendment of the United States Constitution says, “There shall be no excessive bail.”
The Fourteenth Amendment says the Eighth Amendment applies not only to federal courts but also to the courts of the states and all their various political subdivisions.
The United States Supreme Court defines “excessive” to mean that bail should not be set in an amount greater than that necessary to ensure the defendant’s reappearance as directed. In doing so, the court implied the right of society to have the defendant come back to court so that justice can be served. Without bail, when the defendants do not return to court to face their charges, they lose no money, so there is little incentive to return.
The implied recognition by the Constitution of the need for bail suggests that prohibiting bail would be unconstitutional because it would be unfair to the defendant. But it would, by implication, also be unconstitutional to engage in a release methodology that has a routine high failure-to-appear rate, like pre-trial services. Hence, the illegality of pre-trial service agencies. Their operation is unfair to the non-criminal community.
The commercial bail industry is doing a good job of educating courts, legislators and local government leaders to the incontrovertible facts that: (1) we do a much better job of getting persons to court and (2) those we bond out commit fewer crimes while out than persons who are out on non-financially secured release. The industry can, and will, continue to gain ground by education that influences legislation. We educate via printed materials, through oral presentations, by enlisting other private-sector industries to the soundness of our position as it relates to public safety and by special presentations to legislators, encouraging sensible laws on the subject.
Who is doing all of these things? The American Legislative Exchange Council (ALEC) is doing Issue Briefings for legislators in a number of states, state bail agent associations are doing their part, individual bail agents are distributing printed materials demonstrating the superiority of secured release and the American Bail Coalition is working hard on numerous related projects. AIA consistently dedicates significant resources to the fight and, impressively, a few weeks ago a dozen bail insurance companies met in Dallas, Texas to combine their efforts toward the continued protection and expansion of the commercial bail industry.
Is this working? Absolutely! Recently, the Federal Bureau of Justice Statistics published a report demonstrating with credible statistics that non-financial release is on the wane and commercial bail is on the rise. There will be greater and greater economic benefits to the states and fewer and fewer crime victims as a result of our efforts.
Would you like to help? ALEC believes in limited government, and government-sponsored offices designed to replace private business violate that principle. ALEC also promotes individual liberty, which requires people to take responsibility for their own behavior.
ALEC provides excellent materials for use in educating government officials, law enforcement personnel, civic leaders, citizen’s rights groups and ordinary citizens on the systemic strengths of the commercial bail industry and the failures of the pre-trial services approach. Their materials include:
CRIMINALS ON THE STREETS: A Citizen’s Right To Know. This white paper explores pre-trial services and the efforts to eliminate the private-sector bail option. It is a perfect memorandum to give to judges, local political leaders and state legislators.
CITIZEN’S RIGHT TO KNOW PRE-TRIAL RELEASE ACT. This ALEC Model Bill has been circulated to all state legislators and others in state government and made a part of ALEC’s State Legislators Source Book, a ready reference for legislators and their staff. PRE-TRIAL RELEASE:
CRIMINAL JUSTICE PANDEMIC. Here we have an extremely powerful tool for individuals to use in spreading the truth about pre-trial services. It is a small fold-over pamphlet of 20 questions and answers about pre-trial release. You can use it as a hand-out to anyone you hope to quickly educate on the subject.
These excellent pieces can be used to help preserve the private-sector bail industry and protect it from those who wish to see its demise. To receive copies of these materials please contact AIA Communications at (800) 935-2245.
Thank you for your willingness to help and good luck in your important efforts! If you require support in any way, please give AIA a call at any time. Like ALEC and other well-intentioned organizations, we are here to help.
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