1 00:00:02,640 --> 00:00:05,120 Speaker 1: Welcome to brain Stuff, a production of I Heart Radio 2 00:00:07,440 --> 00:00:10,280 Speaker 1: Pain brain Stuff. I'm Lauren Vogelbaum and this is another 3 00:00:10,320 --> 00:00:14,480 Speaker 1: classic episode from our archives. This one explores how cash 4 00:00:14,520 --> 00:00:20,599 Speaker 1: bail works and asks whether there might be a better alternative. Hey, 5 00:00:20,640 --> 00:00:24,000 Speaker 1: brain Stuff, Lauren Vogelbam here. If you're arrested in most 6 00:00:24,040 --> 00:00:27,120 Speaker 1: cities and towns in America, you'll be fingerprinted, booked, and 7 00:00:27,280 --> 00:00:30,920 Speaker 1: tossed in a jail cell until the judge sets your bail. Technically, 8 00:00:31,040 --> 00:00:34,200 Speaker 1: bail means any kind of conditional release from custody between 9 00:00:34,200 --> 00:00:37,720 Speaker 1: your arrest and your actual trial date, but in most cases, 10 00:00:38,000 --> 00:00:41,280 Speaker 1: bail means money. Cash bail is one of the oldest 11 00:00:41,320 --> 00:00:44,120 Speaker 1: ways of ensuring that the accused person shows up for trial, 12 00:00:44,640 --> 00:00:47,880 Speaker 1: dating back to the medieval Anglo Saxon's Cash bail allows 13 00:00:47,880 --> 00:00:50,680 Speaker 1: a defendant to be released from jail before trial by 14 00:00:50,680 --> 00:00:54,080 Speaker 1: giving the court cash or collateral. The money or property 15 00:00:54,160 --> 00:00:56,640 Speaker 1: is returned to the defendant if and only if they 16 00:00:56,640 --> 00:01:00,000 Speaker 1: show up to court. Today, most cash bails aren't paid 17 00:01:00,040 --> 00:01:02,640 Speaker 1: directly by the defendant, but by a third party bail 18 00:01:02,720 --> 00:01:06,639 Speaker 1: bonds agent also known as a surety bondsman. That's because 19 00:01:06,680 --> 00:01:09,800 Speaker 1: the cash bail schedules used by most judges X crime 20 00:01:09,880 --> 00:01:12,960 Speaker 1: equals x dollars in bail don't factor in a person's 21 00:01:12,959 --> 00:01:15,800 Speaker 1: ability to pay. For example, if you were to look 22 00:01:15,840 --> 00:01:19,640 Speaker 1: at theeen bail schedule for Orange County, California, you'd see 23 00:01:19,640 --> 00:01:22,279 Speaker 1: that the bail for residential burglary is set at fifty 24 00:01:22,280 --> 00:01:25,840 Speaker 1: thou dollars. A bail bonds agent charges ten percent of 25 00:01:25,880 --> 00:01:29,080 Speaker 1: the full amount, nonrefundable for your release, and promises the 26 00:01:29,120 --> 00:01:31,160 Speaker 1: court to pay the balance if you don't show up. 27 00:01:31,440 --> 00:01:33,679 Speaker 1: They also promised to hunt you down and collect on 28 00:01:33,720 --> 00:01:36,920 Speaker 1: your debt. But bail bonds agents don't have to post 29 00:01:36,959 --> 00:01:40,680 Speaker 1: bail for everybody. Some people, like drug addicts and repeat offenders, 30 00:01:40,880 --> 00:01:43,800 Speaker 1: may be too risky, and others are simply too poor 31 00:01:43,840 --> 00:01:46,280 Speaker 1: to cover the ten percent fee, so they sit in 32 00:01:46,360 --> 00:01:49,000 Speaker 1: jail awaiting trial, sometimes only for a few days, but 33 00:01:49,080 --> 00:01:52,880 Speaker 1: often for months, and in extreme cases, for years. Currently, 34 00:01:52,960 --> 00:01:55,800 Speaker 1: four hundred and forty three thousand people who haven't been 35 00:01:55,800 --> 00:01:59,240 Speaker 1: convicted are sitting in America's jails awaiting trial, according to 36 00:01:59,320 --> 00:02:02,919 Speaker 1: a nonprofit group called the Prison Policy Initiative, that's seven 37 00:02:02,920 --> 00:02:05,320 Speaker 1: out of every ten people in jail who have yet 38 00:02:05,360 --> 00:02:08,200 Speaker 1: to be convicted or sentenced. Note that jails aren't the 39 00:02:08,240 --> 00:02:11,080 Speaker 1: same as prisons. Jails are designed for shorter stays, whether 40 00:02:11,120 --> 00:02:15,200 Speaker 1: it's a short sentence or a pre trial attention. According 41 00:02:15,240 --> 00:02:18,720 Speaker 1: to a report by the Prison Policy Initiative, the total 42 00:02:18,800 --> 00:02:21,600 Speaker 1: number of Americans incarcerated in both jails and prisons is 43 00:02:21,639 --> 00:02:24,840 Speaker 1: more than two point three million. The real crime for 44 00:02:25,000 --> 00:02:27,520 Speaker 1: criminal justice reform groups like this one is that the 45 00:02:27,560 --> 00:02:30,920 Speaker 1: cash bail system produces two very different outcomes depending on 46 00:02:30,919 --> 00:02:33,760 Speaker 1: how much money the defendant can scrape together. A person 47 00:02:33,840 --> 00:02:36,480 Speaker 1: arrested for felony assault who poses a potential safety risk 48 00:02:36,520 --> 00:02:38,760 Speaker 1: to the community could walk free if they make bail. 49 00:02:39,120 --> 00:02:41,960 Speaker 1: A person arrested for misdemeanor shoplifting could sit in jail 50 00:02:41,960 --> 00:02:43,600 Speaker 1: for weeks because they can't come up with a few 51 00:02:43,680 --> 00:02:47,320 Speaker 1: hundred bucks for bail. We spoke with Rachel Sodle log Fin, 52 00:02:47,480 --> 00:02:50,960 Speaker 1: vice president of the Pre Trial Justice Institute. She said 53 00:02:51,160 --> 00:02:54,320 Speaker 1: money has now become the primary determining factor of whether 54 00:02:54,440 --> 00:02:58,360 Speaker 1: or not you're released. Her organization advocates for eliminating cash 55 00:02:58,360 --> 00:03:01,600 Speaker 1: bail entirely and max smizing release by moving to a 56 00:03:01,680 --> 00:03:04,480 Speaker 1: risk based system that assesses a defendant's threat to public 57 00:03:04,520 --> 00:03:07,560 Speaker 1: safety if released and his or her likelihood of appearing 58 00:03:07,560 --> 00:03:11,360 Speaker 1: in court. Bail reform isn't a new issue. Speaking at 59 00:03:11,400 --> 00:03:15,160 Speaker 1: the nineteen sixty four National Conference on Bail and Criminal Justice, 60 00:03:15,280 --> 00:03:18,800 Speaker 1: Attorney General Robert Kennedy concluded, what has been made clear 61 00:03:18,840 --> 00:03:21,360 Speaker 1: today in the last two days is that our present 62 00:03:21,400 --> 00:03:25,560 Speaker 1: attitudes toward bail are not only cruel, but really completely illogical. 63 00:03:25,919 --> 00:03:28,840 Speaker 1: What has been demonstrated here is that usually only one 64 00:03:28,919 --> 00:03:31,720 Speaker 1: factor determines whether a defendant stays in jail before he 65 00:03:31,760 --> 00:03:34,880 Speaker 1: comes to trial. That factor is not guilt or innocence. 66 00:03:35,160 --> 00:03:37,240 Speaker 1: It's not the nature of the crime, it's not the 67 00:03:37,360 --> 00:03:41,080 Speaker 1: character of the defendant. The factor is simply money. How 68 00:03:41,200 --> 00:03:45,240 Speaker 1: much money does the defendant have. But despite being on 69 00:03:45,320 --> 00:03:48,720 Speaker 1: reformer's radar for more than fifty years, only recently has 70 00:03:48,760 --> 00:03:51,960 Speaker 1: city and state governments begun to really do something about bail. 71 00:03:52,480 --> 00:03:56,119 Speaker 1: New Jersey passed bail reform and launched its new assessment 72 00:03:56,120 --> 00:04:00,240 Speaker 1: based system in January of The Maryland Supreme Court ruled 73 00:04:00,280 --> 00:04:03,040 Speaker 1: in February of seventeen that defendants can't be held in 74 00:04:03,120 --> 00:04:06,200 Speaker 1: jail pre trial simply because they can't afford bail, and 75 00:04:06,400 --> 00:04:09,400 Speaker 1: bills have been introduced in states like California, Connecticut and 76 00:04:09,440 --> 00:04:12,000 Speaker 1: New York to reduce the reliance on cash bail for 77 00:04:12,160 --> 00:04:15,840 Speaker 1: pre trial release. The bail bond industry has been lobbying 78 00:04:15,920 --> 00:04:18,719 Speaker 1: hard against changes to the cash bail system, which it 79 00:04:18,760 --> 00:04:21,320 Speaker 1: insists is still the best way to ensure that defendants 80 00:04:21,400 --> 00:04:24,480 Speaker 1: won't skip out on their court date. Jeff Clayton is 81 00:04:24,520 --> 00:04:27,960 Speaker 1: executive director of the American Bail Coalition. He takes issue 82 00:04:27,960 --> 00:04:30,080 Speaker 1: with a statistic that seven and ten people in jail 83 00:04:30,120 --> 00:04:33,640 Speaker 1: are awaiting trial and haven't been convicted or sentenced. Clayton 84 00:04:33,640 --> 00:04:36,599 Speaker 1: says that most attainees aren't there because they can't pay bail, 85 00:04:36,839 --> 00:04:39,279 Speaker 1: but because the judge has placed them on other holds 86 00:04:39,360 --> 00:04:43,719 Speaker 1: for violating probation or a pending charge in another jurisdiction. Also, 87 00:04:43,880 --> 00:04:46,159 Speaker 1: to say they haven't been convicted ignores the fact that 88 00:04:46,200 --> 00:04:49,359 Speaker 1: they may have a long history of prior convictions. The 89 00:04:49,400 --> 00:04:51,960 Speaker 1: real question about cash bail, he said, is what would 90 00:04:51,960 --> 00:04:55,599 Speaker 1: the alternative be and would it look any better? For that, 91 00:04:55,640 --> 00:04:57,960 Speaker 1: there's really only one place to look, and that's the 92 00:04:58,080 --> 00:05:02,160 Speaker 1: Pre Trial Services Agency or p s A, headquartered in Washington, 93 00:05:02,279 --> 00:05:05,560 Speaker 1: d C. The p s A, an independent federal agency 94 00:05:05,600 --> 00:05:08,359 Speaker 1: with a forty five year track record, is widely regarded 95 00:05:08,400 --> 00:05:11,400 Speaker 1: as the gold standard of pre trial criminal justice reform. 96 00:05:11,800 --> 00:05:14,040 Speaker 1: While cash bail is still legal in d C and 97 00:05:14,200 --> 00:05:16,840 Speaker 1: used in rare cases, the p s A releases eighty 98 00:05:16,920 --> 00:05:20,120 Speaker 1: percent of defendants on their own recognizance, meaning nothing but 99 00:05:20,160 --> 00:05:23,120 Speaker 1: a pledge to return for trial even without bail. The 100 00:05:23,160 --> 00:05:26,160 Speaker 1: p s A has seen nine of release defendants appear 101 00:05:26,200 --> 00:05:29,680 Speaker 1: at all of their scheduled court dates and remain arrest 102 00:05:29,720 --> 00:05:33,280 Speaker 1: free between pre trial release and their trial date. How 103 00:05:33,279 --> 00:05:35,440 Speaker 1: does it work? The p s A uses a risk 104 00:05:35,480 --> 00:05:38,680 Speaker 1: assessment tool that calculates each defendant's real threat as a 105 00:05:38,720 --> 00:05:42,600 Speaker 1: safety or flight risk, using metrics like the defendant's current charges, 106 00:05:42,800 --> 00:05:47,160 Speaker 1: criminal history, age, and other attributes, race not among them. 107 00:05:47,240 --> 00:05:50,479 Speaker 1: Based on this assessment, the system recommends the least restrictive 108 00:05:50,680 --> 00:05:54,719 Speaker 1: non financial release conditions. Next, a team of p s 109 00:05:54,720 --> 00:05:57,640 Speaker 1: A case workers sits down with each defendant, particularly the 110 00:05:57,720 --> 00:06:01,320 Speaker 1: higher risk individuals, to lower their barrier to success. There's 111 00:06:01,360 --> 00:06:04,320 Speaker 1: on site drug testing and an in house drug treatment facility. 112 00:06:04,640 --> 00:06:08,120 Speaker 1: Defendants with mental health issues are referred to community counseling partners. 113 00:06:08,640 --> 00:06:10,599 Speaker 1: The p s A can provide help with employment and 114 00:06:10,640 --> 00:06:14,200 Speaker 1: housing to help disrupt cycles of poverty and crime. If 115 00:06:14,200 --> 00:06:16,400 Speaker 1: a defendant skips on a court date, the judge doesn't 116 00:06:16,440 --> 00:06:18,840 Speaker 1: automatically issue a bench warrant for his or her arrest. 117 00:06:19,160 --> 00:06:21,479 Speaker 1: The p s A case workers conduct a failure to 118 00:06:21,520 --> 00:06:24,839 Speaker 1: appear investigation, which includes phone calls to the defendant, the 119 00:06:24,839 --> 00:06:28,200 Speaker 1: defendant's family, to other jurisdictions, and even to hospitals if 120 00:06:28,200 --> 00:06:31,920 Speaker 1: the defendant has known health issues. All of this costs money. 121 00:06:32,279 --> 00:06:34,200 Speaker 1: The p s A has three hundred and fifty full 122 00:06:34,240 --> 00:06:37,840 Speaker 1: time employees seventent our case workers, with an annual budget 123 00:06:37,839 --> 00:06:41,400 Speaker 1: of sixty five million dollars. Clayton of the American Bail 124 00:06:41,440 --> 00:06:45,840 Speaker 1: Coalition said supervision and all these alternatives are hugely expensive, 125 00:06:46,080 --> 00:06:48,440 Speaker 1: and noted that New Jersey's new system, which follows the 126 00:06:48,480 --> 00:06:51,160 Speaker 1: p s A model closely, may cost in the hundreds 127 00:06:51,160 --> 00:06:54,600 Speaker 1: of millions of dollars to operate. Leslie Cooper, director of 128 00:06:54,640 --> 00:06:57,120 Speaker 1: the p s A, says that the agency's core tenants, 129 00:06:57,240 --> 00:07:00,560 Speaker 1: risk assessment and release conditions tailored to that risk, are 130 00:07:00,600 --> 00:07:03,880 Speaker 1: scalable and replicable anywhere, and can be customized to fit 131 00:07:03,920 --> 00:07:07,240 Speaker 1: a jurisdiction's budget. What's harder is the culture shift that 132 00:07:07,279 --> 00:07:11,080 Speaker 1: needs to happen from within, Cooper said, if a jurisdictions. 133 00:07:11,080 --> 00:07:13,600 Speaker 1: Culture of criminal justice has developed around the use of 134 00:07:13,600 --> 00:07:16,280 Speaker 1: money bond as a system, particularly money bonds that are 135 00:07:16,320 --> 00:07:19,239 Speaker 1: secured by a third party bail bondsman, it's a huge 136 00:07:19,280 --> 00:07:22,040 Speaker 1: cultural change to tell people that your system can be equally, 137 00:07:22,080 --> 00:07:25,400 Speaker 1: if not more effective, when you take away money. Nothing 138 00:07:25,440 --> 00:07:27,480 Speaker 1: sells the case better than being able to say it 139 00:07:27,520 --> 00:07:30,480 Speaker 1: works and we have the numbers to prove it. The 140 00:07:30,520 --> 00:07:34,040 Speaker 1: bail industry and criminal justice performers rarely see eye to eye, 141 00:07:34,320 --> 00:07:37,160 Speaker 1: but Clayton of the American Bail Coalition agrees that diverting 142 00:07:37,200 --> 00:07:39,840 Speaker 1: some detainees to drug and mental health treatment is the 143 00:07:39,840 --> 00:07:42,800 Speaker 1: way to go. He said, people with mental health and 144 00:07:42,920 --> 00:07:45,840 Speaker 1: drug issues and all these problems, nobody's going to post 145 00:07:45,880 --> 00:07:47,840 Speaker 1: bond for them. Doesn't mean that we need to keep 146 00:07:47,880 --> 00:07:56,160 Speaker 1: these people in jail. No. Today's episode was written by 147 00:07:56,240 --> 00:07:59,120 Speaker 1: Dave Ruse and produced by Tristan McNeil and Tyler Klang. 148 00:07:59,520 --> 00:08:01,480 Speaker 1: For more this a lots of other topics, visit has 149 00:08:01,480 --> 00:08:03,800 Speaker 1: Stuff works dot com and brain Stuff is production of 150 00:08:03,840 --> 00:08:06,480 Speaker 1: by Heart Radio. For more podcasts my Heart Radio, visit 151 00:08:06,480 --> 00:08:09,280 Speaker 1: their heart Radio app, Apple Podcasts, or wherever you listen 152 00:08:09,320 --> 00:08:10,200 Speaker 1: to your favorite shows.