National Pulse

Bail industry battles reforms that threaten its livelihood

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In New Jersey, the Arnold Foundation is a named defendant, alongside Porrino and then-Gov. Chris Christie, in a wrongful death suit that also seeks to halt the use of the PSA. The complaint alleges that Christian Rodgers, 26, was fatally shot by a man released under the risk assessment regime. He had been arrested on weapons charges before his release.

Rodgers’ mother argued in her complaint that because of the PSA, “throngs of violent criminals were released into the streets of New Jersey’s neighborhoods.” The complaint argues that the PSA’s formula undervalues certain cases that involve the unlawful possession of a firearm. (The case is being backed by Duane Chapman, a reality television personality also known as “Dog the Bounty Hunter” who chases bail skippers across the country.)

After Rodgers’ killing, the attorney general’s office released guidelines, which include the presumption that prosecutors will seek to hold people in pretrial detention on firearm possession charges (among other violent crimes).

While the lawsuit is pending, the Arnold Foundation is researching the impact of its risk assessment system and how it can be improved as it is rolled out to other jurisdictions, says Matt Alsdorf, president of Pretrial Advisors and previously vice president of criminal justice at the Arnold Foundation.

Although curtailing cash bail is a current topic in the states, the federal system rejected this approach in 1966 and tailored release decisions to the risk posed by the defendant. For Brett Tolman, a former U.S. attorney for Utah, his experience in the federal system bolsters his support of bail reform.

“I got to see how that worked,” Tolman says of the federal risk-based system. He says it was not perfect but thinks the current system is broken and being held hostage by the bail industry.

Not yet to the point of litigation, rules were proposed by the Judiciary Courts of the State of Utah that would move toward a risk-based system and a pilot of the PSA. But the legislature asked the courts to hold off after the industry intervened.

This hurdle has the potential to be a brutal fight. “If it sounds too good to be true, then probably it is,” said Wayne Carlos, president of the Utah Association of Professional Bondsmen and Agents, during a legislative hearing in September. “What is the real reason why the courts are trying to push this program? Let’s find out before it’s too late.”

Tolman says the bail industry used “misinformation and fear tactics” to get the Utah legislature to intervene after the legislative auditor general called for bail reform and the adoption of a risk assessment tool in 2017

With a temporary victory for the industry, the courts are in a “wait-and-see sort of approach,” says Geoffrey Fattah, spokesman for the Utah state courts.

To the southeast, New Mexico’s bail reform advocates successfully passed a state constitutional amendment in 2016 to decrease the state’s reliance on cash bail while keeping it as a limited option, says Artie Pepin, director of the Administrative Office of the Courts in Santa Fe.

However, the judiciary’s rulemaking and implementation, which includes a pilot of the PSA in Bernalillo County, was rejected by the bail industry.

The bail bonds association sued the state to halt implementation in 2017, although the case was later dismissed. Blair Dunn, an attorney for the association who was ordered to pay costs and attorney fees for filing frivolous claims, says the association is appealing to the 10th U.S. Circuit Court of Appeals at Denver.

Gerald Madrid, president of the Bail Bond Association of New Mexico, is a plaintiff in the case and is particularly critical of the risk assessment tool. He says it’s too permissive and essentially allows release for everyone, which puts the public’s safety at risk.

It has also hurt his bail bond business, which is based in Albuquerque. Since the reform, he laid off all 10 employees in the Albuquerque office, while his contractors in other parts of the state have scaled back operations. “It’s financially destroyed the bail bond industry in New Mexico,” he says.

Regardless of the hurdles placed by the bail industry, Porrino, the former New Jersey attorney general, is optimistic for the future of similar efforts. “As word starts to get out, I think you end up with a surge nationally to implement reforms a lot like the reforms being implemented here in New Jersey,” he says.

This article was published in the March 2018 issue of the ABA Journal with the title "Battling Bail: The bail industry is fighting back against reforms that threaten its livelihood."

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