The Bail Project Isn't Liable for Crimes by People It Bailed Out

From Troutt v. The Bail Project, Inc., decided Friday by the Kentucky Court of Appeals (opinion by Judge Pamela Goodwine, joined by Judge Christopher McNeill):

On February 24, 2022, the Troutts filed a complaint against TBP alleging TBP was negligent in posting a bail bond for Michael DeWitt …, loss of consortium of their daughter, and punitive damages. The suit arose out of a fatal accident between DeWitt and the Troutts' daughter Madelynn. According to the complaint, DeWitt has a criminal history dating back to 2012. Relevant to this appeal, on February 16, 2021, DeWitt was arrested in Louisville and charged with receiving stolen property (motor vehicle), public intoxication (controlled substance), criminal trespass, disorderly conduct, resisting arrest, and assault on a police officer resulting in physical injury.

On February 24, 2021, TBP posted a bond for DeWitt, and he was released from custody. Five days later, on March 1, 2021, DeWitt, while under the influence of amphetamines and benzodiazepines, drove a stolen vehicle and crossed the centerline of Dixie Highway in Jefferson County, causing a head-on collision with a vehicle driven by Madelynn, a 17-year-old. DeWitt was allegedly traveling 58 miles per hour one second before the impact, which occurred in a 45-mile-per-hour zone. Additionally, the Troutts alleged DeWitt was driving a stolen car containing six stolen guns. Tragically, Madelynn died at the hospital about forty-five minutes after the accident.

The Troutts claimed TBP was negligent in failing "to reasonably investigate DeWitt's criminal history and propensity to re-offend before posting his bail bond thereby permitting him to be released from jail." They also alleged TBP failed to comply with duties it undertook "to ensure DeWitt attended the drug rehabilitation program and other terms and conditions of bond," and "breached other duties of care not yet known" to the Troutts and other duties that "were the proximate cause" of the accident that resulted in Madelynn's death.

No, said the majority, because posting bail for someone doesn't create a duty to control his behavior:

The mere act of paying bail for a criminal defendant does not require a surety to control the criminal defendant while out of custody on bond. It would be unsound public policy to require a bail surety to assume an affirmative duty to supervise a criminal defendant's actions.

If we accepted the Troutts' argument, then any individual, often a family member, who paid bail on behalf of a criminal defendant would be civilly liable to victims of crimes committed while the defendant was out of custody on bond. This is undoubtedly why the Supreme Court of Kentucky and the Kentucky General Assembly have never created a civil cause of action to hold a bail surety liable for a criminal defendant's actions. To do so would needlessly open the floodgates and overburden our courts' civil dockets….

Judge Annette Karem dissented, concluding that a surety should have the same duties as an employer, which might be liable for negligent hiring:

In negligent hiring/retention claims the law imposes a duty upon the employer to use reasonable care in the selection or retention of its employees…. Using [a similar] analysis, TBP owed a … duty of care to Madelyn Troutt and a finding of summary judgment for TBP by the trial court was premature.

All three judges agreed that TBP's actions weren't protected by the First Amendment, relying on The Bail Project, Inc. v. Commissioner, Indiana Department of Insurance (7th Cir. 2023), which held,

[T]he First Amendment protects conduct only when it is "inherently expressive." Rumsfeld v. FAIR (2006). To be inherently expressive, "the conduct in question must comprehensively communicate its own message without additional speech." That is, "the conduct itself must convey a message that can be readily 'understood by those who view[] it.'" Otherwise, "an apparently limitless variety of conduct [could] be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." …

The Bail Project's act of paying cash bail does not inherently express any message. On its own, paying bail for a pretrial defendant does not communicate even the most general version of The Bail Project's message – its opposition to cash bail. Without knowledge of The Bail Project's mission and repeat-player status, a reasonable observer would not understand its payment of cash bail at the clerk's office as an expression of any message about the bail system. A person could be paying bail to secure a loved one's freedom pending trial, or they could be performing a purely charitable act to help an indigent defendant. But whatever their motivation for doing so, the point is that nothing about the act itself inherently expresses any view on the merits of the bail system….

Comments

[#FFFFFFPride]

But gun companies are liable for crimes committed with guns.

Say the tyrannical Democrats.

[Krychek_2]

I think both the gun company cases and this case should be decided on their facts case by case rather than having a bright line rule. I suspect most of the tyrannical Democrats would agree. But don’t let that stop you from making everything into a partisan issue.

But the two aren't really analogous anyway because in the case of bail, a court has already looked at the facts and determined that the defendant is entitled to bail. Absent some really egregious facts, the bail company is merely facilitating the court order. But again, don't let the fact that it's a stupid analogy get in the way of your partisan bile.

[Dr. Ed 2]

In other words, we really need to have more dangerousness hearings and stricter bail conditions. Daily drug tests?

[Krychek_2]

I just went on google and found that 4% of people on bail commit violent crimes, which means 96% don't. So the question is how many people who would not commit crimes are you willing to penalize for the 4% that do.

[Frank Drackman]

Are you Parkinsonian Joe Biden? That's the same Idiotic thing he said about more people being killed by "Legals" than "Ill-legals"

[Krychek_2]

Well, he's right; illegals actually have a lower crime rate than legals.

And I'd be careful whom I called Parkinsonian given Trump's increasingly obvious mental incapacity. Have you been listening to him lately? He is definitely in his dotage.

[Brett Bellmore]

"Well, he’s right; illegals actually have a lower crime rate than legals"

Well, he's wrong. There's this one study back in 2020 that claimed that, and gets widely quoted. But it based whether somebody was an illegal alien based on what their status was recorded as when they ENTERED the justice system, and, surprise: Illegal aliens lie about being illegal aliens. Go figure, who saw that coming?

When you go back and check on the finally determined immigration status, you find that illegal aliens, unsurprisingly, actually have a higher crime rate than people here legally.

[Krychek_2]

Illegal aliens have a higher crime rate than legal aliens, but a far lower crime rate than native-born Americans. In Texas, criminal conviction rates for legal aliens are 535 per 100,000, for illegals it is 782 per 100,000, but for native born Americans it is 1,422 per 100,000. So the obvious solution is to deport all the native born Americans.

https://www.cato.org/blog/new-research-illegal-immigration-crime-0

[Brett Bellmore]

Congratulations, you've referred me to a paper that makes the exact same mistake as the other paper I'd linked to: Only looking at the initial determination of status on entry into the justice system, instead of the final determination of status several years later. And keep in mind that every illegal immigrant criminal mistakenly identified as a citizen bumps up the 'citizen' crime rate.

[Krychek_2]

Funny how everyone except your source keeps making the same mistake. Does it occur to you that aliens, legal or otherwise, are highly motivated to be able to stay once they've gotten here so it actually makes intuitive sense that they would commit fewer crimes?

[Brett Bellmore]

It’s not “everyone keeps making the same mistake”, Krychek.

Two, count ’em, two, papers, both made the same mistake. The Cato paper you linked to, and the PNAS paper I pointed out. Cato actually made this mistake FIRST. This is pretty common; A new approach to analyzing data surfaces, and several people try it out, and in the process make the same identical error.

Then in 2022, the mistake was identified, and the second paper I linked to was published, pointing it out.

If there’s anything odd going on here, it’s that illegal immigration advocates keep citing the older papers even though they’re already known to be wrong! And I do mean KNOWN, the mistake is quite clear and objective, it's not some matter of interpretation.

[David Nieporent]

Congratulations; you've done pretty much as expected: look for something that supports your priors and then assume it's right and everything else is wrong. In fact, Cato has responded to CIS's argument, pointing out that the data they're using doublecounts some illegals, and that CIS's analysis therefore is incorrect.

[Brett Bellmore]

Link?

[Artifex]

I think he is probably referring to this linkFrom Cato

A bit lame since Nowrasteh does not publish his data like CIS does. This lead me to look for data at the source From Texas DPS

There is also an additional interesting dynamic here. They claim that through the prison intake (PEP) they have 303,000 illegal aliens with 471 homicide convictions. There were 10,760 individual identified as illegal aliens while in prison, but who were not previously identified through PEP, with 104 homicide convictions. The guys they identified and Cato initially left out seem to be some bad dudes.

[NOVA Lawyer]

The explanation at Cato is very thorough and convincing. CIS's later response, not so much. And Alex Nowrasteh of Cato completely owns them in this Twitter thread:

https://twitter.com/AlexNowrasteh/status/1763276763549823164?s=20&fbclid=IwZXh0bgNhZW0CMTAAAR1jBu7JchhUO2fjaJs3r72D3sZZY7WvEPEhoWKkNFZQTbE5yueoHbZuUc8_aem_AeE0o7GyIJAR2guAgvmjXrD5rI5AWFyZ220DKhLWMuewA3GrSSRm8Zf32LqMpSCIEUn9jvnOgQvGATKGjQyCBE8i

[Bob from Ohio]

illegals actually have a lower REPORTED crime rate

[Nige]

Everybody has a lower REPORTED crime rate.

[Brett Bellmore]

Now compare that to the percentage of people not on bail who commit violent crimes over the same interval. What you're dismissing here is a remarkably high rate of violent crime. Particularly since it doesn't account for the violent crimes they commit that don't get pinned on them; The clearance rate for violent crimes is under 50%, which means that if people on bail are getting caught committing violent crimes 4% of the time, they're likely actually committing them more like 8% of the time.

Another problem with what you're saying is that, if these people were committing property crimes, simply stealing stuff, you could make the victims whole quite easily using the bail money. So, yeah, you might dismiss it as a problem. But with violent crimes? Is the bail money going to make a rape victim whole?

[Sarcastr0]

So it sounds like you just don't like bail.

[Brett Bellmore]

Seriously? No, I'm OK with bail for property crimes, or any other crime where the crime is financial in nature. Particularly for offenses where the penalty is likely to be, or could be, financial; A fine or restitution.

In these cases the bail can be objectively determined, and can be used to satisfy the judgment if necessary.

In cases of violent crime? I think it's a lousy system. There's no objective way to determine the bail, and it can't be used to satisfy the judgment. I'd rather see some other approach, like ankle monitors or home arrest, or in high risk cases, lock them up and reimburse them at a reasonable rate for their time if they're not convicted.

Part of the problem here is that we're actually routinely blowing off another constitutional requirement: Speedy trials!

[Martinned2]

So keep defendants in pre-trial detention if you like, but pay them a serious damages award if they are acquitted at trial. That should motivate the state legislature to make sure enough resources are available to ensure a speedy trial.

[Brett Bellmore]

Exactly! My view is that the various inconveniences we subject defendants to are quite reasonably considered part of the penalty for the crime, for those convicted. But in the case of those acquitted, they are more properly regarded as just another cost of having a justice system, and should fall on the general budget, not be imposed on defendants.

[bernard11]

It might also motivate the state to be "over-aggressive" in trying to secure a conviction or guilty plea.

Might prosecutors offer unreasonably generous plea bargains to avoid the risk of an (expensive) acquittal?

I don't object to paying the compensation you suggest, but it's not, unsurprisingly, as simple as you make it out.

[Brett Bellmore]

I'm not sure how much room is left for the state to be any more aggressive in that regard...

In federal courts, 89.5% of charges end in a guilty plea, 8.2% end with the charges dismissed. Only 2.3% ever go to trial, and 0.4% end with acquittals. (This according to Pew.) It's flatly absurd to think this is actually a justice system.

The numbers for state courts are a lot more reasonable.

OK, not much room for the federal courts to be more aggressive, I guess there's plenty of room in either direction for the state courts.

[bernard11]

You may, of course, be looking at a strong selection bias by federal prosecutors.

Those numbers by themselves don't prove your case. You need to know how many cases that might possibly be pursued are let go.

By "aggressive," I meant willingness to cut corners.

[Sarcastr0]

I mean, OK fine. I will admit I haven't really thought about the policy implications in quite some time.

Thing is, you're making a collateral attack - you're advocating to hold someone responsible in order to come after a system you don't like.

If you don't like the system, say that. Don't rope someone into risks for using the system just because you don't like it.

[Brett Bellmore]

I'm not actually supporting the proposal to hold bail bondsmen liable, Sarcastr0. They're already liable for the bond, and that should be enough, if the bond is properly determined.

There is a problem that's peculiar to TBP, though: Bail bondsmen are in business, and have a strong financial motivation to evaluate the riskiness of their clients. Somebody who is an obvious flight risk will be charged more, or even find nobody willing to put up the bond.

TBP, though? They're not on the hook if the bail is forfeited, it's their donors who are out the money. They have very little personal motivation to evaluate the flight risk of defendants. And when TBP takes you on as a client, you're no longer on the hook, if you flee and the bail is forfeited, it costs you nothing.

But the whole freaking POINT of bail is to motivate the defendant to show up! TBP is breaking the bail system, and intentionally. They're rendering it non-functional, a useless appendage that actually accomplishes nothing.

If you like the bail system, you should find that very troubling indeed.

[bernard11]

That's an overstatement, Brett.

You can't reasonably separate TBP from its donors, who are likely to be unhappy if they see a lot of forfeits.

"Why do you need another contribution?"
"Because we've forfeited a lot of money."
"I see."

Anyway, do you have any data to support your idea, or is it just your logic?

[Brett Bellmore]

Bail bondsmen have to be doing a good job of evaluating flight risk. If they didn't, they'd go bankrupt, after all. They're basically living off the difference between actual flight risk, and the bail set by the courts.

I'm just pointing out that TBP has no such financial constraint. Sure, the donors might walk away if they lost the bail every time, but there's plenty of room for TBP to continue in operation even if they are fairly bad at evaluating flight risk.

[Sarcastr0]

Bail is not supposed to be curtailed by market forces, Brett.

Jesus Christ.

People give to a charity to do a thing. That’s actually the system functioning well.

You don’t see providing bail as providing charity, see DMN's 2 posts below about the costs of keeping people in prison, and how the population here is *accused* not actually convicted.

[David Nieporent]

lock them up and reimburse them at a reasonable rate for their time if they’re not convicted.

It's not their "time" that's the issue. It's the fact that being in jail is likely to cause them to lose their jobs, residence, and often kids. Some people may pose such a risk of danger that this tradeoff is worth it, but it has to be pretty sparing.

[Harvey Mosley]

This is one of the things we disagree about. I think the purpose of bail is to make sure the defendant shows up for trial. It shouldn’t be about the dangerousness of the crime or the defendant. House arrest and ankle monitors should be the norm.

Like you, I think we have too many plea bargains and I think many of those are because a defendant may spend more time in pretrial confinement than the sentence they may receive in a plea bargain. If defendants weren’t locked up before they were convicted I think we would end up with more trials and fewer plea bargains.

I would have no problem with someone being denied bail if they were arrested for a violent crime while they were already out on bail. Or if they had jumped bail in a previous case.

[MikeFr]

Are we really unable to distinguish dangerousness at all between different defendants?

For example, non-violent criminals who are not addicts or alcoholics are generally not dangerous to the public.

Violent criminals and addicts generally are dangerous to the public.

[David Nieporent]

You mean people accused of being violent criminals, right?

[BadLib]

What percentage of those out on bail for violent crimes commit a violent crime while out on bail?

If someone is out on bail after being charged with stealing a bicycle I would not assume that they would be particularly inclined to commit violent crimes while on bail (assuming that their criminal history has no violent crimes in it).

Both the numerator and denominator should be reflecting similar crimes to yield a very meaningful percentage.

[#FFFFFFPride]

Uh,

The BaIl Project isn’t a bail company. Why are you arguing as if it were?

The courts evaluated the situation and set bail at an amount The defendents couldn’t meet on their own. Then this organization comes along and circumvents then courts original discretion.

Surely the courts had a good reason to make bail out of reach for these people.

[jb]

If the court wanted bail to be out of reach, it could just deny bail.

[David Nieporent]

Our resident racist is not wrong in expressing the way many people think about bail: that it's to keep people in prison. But that's of course exactly the opposite of truth: the entire purpose of the bail system is to let people out before trial.

[Krayt]

Judge Annette Karem dissented, concluding that a surety should have the same duties as an employer, which might be liable for negligent hiring:

This seems silly. While a government can goof estimating likelihood of issues in bailed people, when setting bail, that would seem to be the end of it.

[Dilan Esper]

Yeah, if you are going to have a bail system at all, a rule of non-liability for bond posters seems to me to be required.

[ReaderY]

I think the Eighth Amendment Excessive Bail Clause requires a bail system. People have a constitutional right to cash bail.

It can be abolished by setting bail at zero without running afoul of the clause. But it cannot be excessively burdened to the point of rendering it unworkable.

[Martinned2]

Sure, but how did bail work in 1788?

[Krayt]

The powerful siccing government onto political enemies to hurt them turned it into a gentlemen's game, so they spring themselves while their lessers battle it out?

[John F. Carr]

The alternative decision would make the bail bond business quite risky.

[Martinned2]

They could have tripled their fees and hired more people to check up on their customers. That's not the problem. As noted above, the problem might be that that would price a lot of people out of the bail system.

[Brett Bellmore]

I don't see how that's a problem, actually. If the amount of bail necessary to keep somebody from skating is more than they can afford, it's more than they can afford. That doesn't mean it's excessive. I take the clause to prohibit pretextually high bail, not bail that's honestly high.

[Martinned2]

Setting a bail level that someone can't afford is equivalent to denying them bail. If that's what you want to do, do it. But if you're going to set bail, it has to be an amount that the accused might actually raise.

[Krayt]

Would bail have been invented if murder and robbery were the only crimes? Or only if the powerful took pot shots at each other using the power of government investigation to hurt political enemies?

"Look, we got him on something, which we knew we would because he's powerful and rich himself, like us!"

"Oh, come on Skip and Muffy, do I have to rot in this cell, really?"

"Nah, just throw some money. We are civilized after all."

[Brett Bellmore]

I think the reason bail was invented is that almost everybody was employed in jobs at the time where if you left them undone, it was life-alteringly disastrous.

Almost the entire economy was agricultural, remember. If you charged a farmer with a crime, and locked him up so that he couldn't plant his fields or harvest them, his farm was likely defunct, AND a lot of people might starve. So they really seriously needed a system where most people could continue working even if charged with a crime.

Also, at the time running away far enough you wouldn't get caught was pretty hard to do, too. Especially if you'd made sure they didn't have the money to buy passage on a ship. It's not like today, where somebody can hotwire a car and be two states away by morning.

So the practicalities of the matter were rather different.

[bernard11]

You are making shit up again.

It seems to have more to do with the difficulty of detaining defendants and, in the western US, the ease of fleeing.

[Brett Bellmore]

Funny thing: Your link doesn't contradict anything I've said here.

For instance, from the summary, the very first words: "The Eighth Amendment Bail Clause prohibits bail that is excessive—without regard to whether it is unaffordable. "

Me, just a few comments above: " If the amount of bail necessary to keep somebody from skating is more than they can afford, it’s more than they can afford. That doesn’t mean it’s excessive."

Maybe you want to identify what, if anything at that link, establishes that I lied about something?

[Sarcastr0]

Brett, you seem to be arguing for a living Constitution here...Breyer's purposivism, it looks like. Or maybe evolving common language.

Either way it's pretty funny.

[MikeFr]

Bail should be set to a reasonable amount to compel the accused to present himself at trial.

Bail bonds should be prohibited since if the accused's own money or that of family, close friends, etc. is not at risk it will not achieve its purpose.

People who are dangerous to others should be denied bail, not given excessively high bail amounts.

[tkamenick]

"Judge Annette Karem dissented, concluding that a surety should have the same duties as an employer, which might be liable for negligent hiring"

That's ridiculous. An employer has a huge degree of control over an employee during the entire period they are working. Plus an employer is using that employee to make a profit

[ReaderY]

While the court here quite appropriately decided the matter based on state law, I would think the Excessive Bail clause of the Eighth Amendment would preclude a tort of this nature.

A state can’t overly burden, by stealth, what it can’t prohibit directly.

[Martinned2]

Does the 8th amendment require the government/courts to facilitate the existence of companies like TBP in the first place? My assumption would be that in 1788 people paid their own bonds, or had family & friends pay for them. And an excessive bail is a bail that is too high for the defendant to pay in this way.

[David Nieporent]

Does the 8th amendment require the government/courts to facilitate the existence of companies like TBP in the first place?

TBP is not a company. It's a charitable organization.

[BadLib]

True.

But TBP is even less accountable than a company as they are spending tax exempt donor dollars with no little fiduciary responsibility to the donors to evaluate risk of bail forfeiture.

If TBP were a for-profit company without the advantage of, effectively, a tax payer subsidy its owners would likely have a much stronger motivation to evaluate forfeiture risk carefully and, if they were a public company, probably a fiduciary responsibility to do so.

[Sarcastr0]

Bail payment requires a fiduciary responsibility to be legitimate?

What the fuck?

[Bob from Ohio]

A fishy decision.

[Balisane]

I agree with the decision. The fault lies with the judges that grant bail to violent people period. Under U.S. v. Salerno, they can be detained until trial, and they should be.

[Davy C]

Agreed. If bail is set at all, then the court system has made the decision that it is not a problem to release this person.

A victim should perhaps be able to sue the court system for up to the amount of the bail (the court system shouldn't profit from its mistake) and of course are able to sue the offender.

[The Margrave of Azilia]

"If bail is set at all, then the court system has made the decision that it is not a problem to release this person."

No, bail's purpose is to preserve the jurisdiction of the court by making sure, e. g., the defendant shows up for trial, doesn't intimidate witnesses, report on his whereabouts, and the like.

The system has metastasized beyond this because - see below - we've departed from the wisdom of our forbears and no longer see the right to bail in noncapital cases as a constitutional right.

If people who post bond can be held liable beyond the amount of the bond itself, the right to bail would be even further eroded.

[Davy C]

There were, of course, a lot more capital crimes in 1789 than now.

[The Margrave of Azilia]

It would be *so unfair* if a crime was bailable merely because the defendant didn't face a capital sentence.

/sarc

[RhymesWithRight]

Any other result would have made family members personally responsible for the crimes of relatives they bailed out, and would have made bail bondsmen responsible for the crimes of those they do business with.

[Balisane]

I'd be okay with familial responsibility. There's no reason Shaniqua shouldn't be responsible for the behavior of 16 year old Shitavius that was raised by her when she was a teenager and without a father.

[ObviouslyNotSpam]

Did your old name get banned?

[Balisane]

No, I didn't have an old name.

[Rev. Arthur L. Kirkland]

There might be more conservative bigots out there than you think. It's a dwindling, pathetic group, but still enough of those stains left to generate noise and problems, especially in America's poorly educated southern and rural stretches.

[mulched]

Ideologically motivated and deep pocketed third party payers are a bad fit for a bail system that's supposed to create accountability.

The accused doesn't have the same incentive to return to court and stay out of trouble if someone else covers the tab.

Restricting the source of funds might work but creates some tough line drawing challenges.

[Frank Drackman]

Bet they'd have decided differently if "45" had posted the bail

[The Margrave of Azilia]

Some time back I found a law-review article which said that all but two of the states admitted to the Union after 1789 had, at the time of admission, constitutional provisions guaranteeing a right to bail in noncapital cases.

I don’t know about you, but this strikes me as evidence that bail in noncapital cases is a right reserved by the Ninth Amendment, as well as a privilege or immunity of U. S. citizenship under the Fourteenth Amendment.

Believing as I do, I certainly think the liability of someone who posts bail needs to be limited to the amount of the bail itself - that is, if the defendant violates the terms of the bail, whoever posted the money would not get it back.

Any other rule would be a backdoor to abolishing bail in a large class of cases.

Unfortunately, the Supreme Court denies there's a right to bail in noncapital cases, based I suppose on the Bad Person exception to the Constitution. Brennan and Marshall, the only supporters of a right to bail relied on substantive due process rather than more solid reasoning, so it was easier to dismiss their objections.

The current movement to "abolish cash bail" will not get rid of a dual system of justice, The current system, of course, is biased toward those who can put up the bail money or have a bondsman do it. A no-cash-bail system would also divide defendants in to two classes, and these classes would be: (a) people the establishment deems dangerous, who would be held without bail even if they could afford it, and (b) people the establishment does not deem dangerous, or worth worrying about, who will be released in ways no more protective of the public than the authorities were with this DeWitt criminal.

[jdgalt1]

During the George Floyd riots (which were professionally planned, enough that agitators were bussed from one city to the next and pallets of rocks and bricks were delivered by truck for use in them), bail-paying arrangements were made in advance -- including by Maxine Waters -- for the express purpose of enabling the riot leaders to keep committing crimes after they were arrested. And yes, this is partisan, because no one on the right has done anything similar.

Maliciously bailing out people so they can do it again obviously is and should be a crime. Why are the court opinions quoted here silent on that subject? Partisan bias?

[ObviouslyNotSpam]

Yeah, that's clearly the only explanation.