WEBVTT - BrainStuff Classics: Is There a Better Alternative to Cash Bail? 0:00:02.640 --> 0:00:05.120 Welcome to brain Stuff, a production of I Heart Radio 0:00:07.440 --> 0:00:10.280 Pain brain Stuff. I'm Lauren Vogelbaum and this is another 0:00:10.320 --> 0:00:14.480 classic episode from our archives. This one explores how cash 0:00:14.520 --> 0:00:20.599 bail works and asks whether there might be a better alternative. Hey, 0:00:20.640 --> 0:00:24.000 brain Stuff, Lauren Vogelbam here. If you're arrested in most 0:00:24.040 --> 0:00:27.120 cities and towns in America, you'll be fingerprinted, booked, and 0:00:27.280 --> 0:00:30.920 tossed in a jail cell until the judge sets your bail. Technically, 0:00:31.040 --> 0:00:34.200 bail means any kind of conditional release from custody between 0:00:34.200 --> 0:00:37.720 your arrest and your actual trial date, but in most cases, 0:00:38.000 --> 0:00:41.280 bail means money. Cash bail is one of the oldest 0:00:41.320 --> 0:00:44.120 ways of ensuring that the accused person shows up for trial, 0:00:44.640 --> 0:00:47.880 dating back to the medieval Anglo Saxon's Cash bail allows 0:00:47.880 --> 0:00:50.680 a defendant to be released from jail before trial by 0:00:50.680 --> 0:00:54.080 giving the court cash or collateral. The money or property 0:00:54.160 --> 0:00:56.640 is returned to the defendant if and only if they 0:00:56.640 --> 0:01:00.000 show up to court. Today, most cash bails aren't paid 0:01:00.040 --> 0:01:02.640 directly by the defendant, but by a third party bail 0:01:02.720 --> 0:01:06.639 bonds agent also known as a surety bondsman. That's because 0:01:06.680 --> 0:01:09.800 the cash bail schedules used by most judges X crime 0:01:09.880 --> 0:01:12.960 equals x dollars in bail don't factor in a person's 0:01:12.959 --> 0:01:15.800 ability to pay. For example, if you were to look 0:01:15.840 --> 0:01:19.640 at theeen bail schedule for Orange County, California, you'd see 0:01:19.640 --> 0:01:22.279 that the bail for residential burglary is set at fifty 0:01:22.280 --> 0:01:25.840 thou dollars. A bail bonds agent charges ten percent of 0:01:25.880 --> 0:01:29.080 the full amount, nonrefundable for your release, and promises the 0:01:29.120 --> 0:01:31.160 court to pay the balance if you don't show up. 0:01:31.440 --> 0:01:33.679 They also promised to hunt you down and collect on 0:01:33.720 --> 0:01:36.920 your debt. But bail bonds agents don't have to post 0:01:36.959 --> 0:01:40.680 bail for everybody. Some people, like drug addicts and repeat offenders, 0:01:40.880 --> 0:01:43.800 may be too risky, and others are simply too poor 0:01:43.840 --> 0:01:46.280 to cover the ten percent fee, so they sit in 0:01:46.360 --> 0:01:49.000 jail awaiting trial, sometimes only for a few days, but 0:01:49.080 --> 0:01:52.880 often for months, and in extreme cases, for years. Currently, 0:01:52.960 --> 0:01:55.800 four hundred and forty three thousand people who haven't been 0:01:55.800 --> 0:01:59.240 convicted are sitting in America's jails awaiting trial, according to 0:01:59.320 --> 0:02:02.919 a nonprofit group called the Prison Policy Initiative, that's seven 0:02:02.920 --> 0:02:05.320 out of every ten people in jail who have yet 0:02:05.360 --> 0:02:08.200 to be convicted or sentenced. Note that jails aren't the 0:02:08.240 --> 0:02:11.080 same as prisons. Jails are designed for shorter stays, whether 0:02:11.120 --> 0:02:15.200 it's a short sentence or a pre trial attention. According 0:02:15.240 --> 0:02:18.720 to a report by the Prison Policy Initiative, the total 0:02:18.800 --> 0:02:21.600 number of Americans incarcerated in both jails and prisons is 0:02:21.639 --> 0:02:24.840 more than two point three million. The real crime for 0:02:25.000 --> 0:02:27.520 criminal justice reform groups like this one is that the 0:02:27.560 --> 0:02:30.920 cash bail system produces two very different outcomes depending on 0:02:30.919 --> 0:02:33.760 how much money the defendant can scrape together. A person 0:02:33.840 --> 0:02:36.480 arrested for felony assault who poses a potential safety risk 0:02:36.520 --> 0:02:38.760 to the community could walk free if they make bail. 0:02:39.120 --> 0:02:41.960 A person arrested for misdemeanor shoplifting could sit in jail 0:02:41.960 --> 0:02:43.600 for weeks because they can't come up with a few 0:02:43.680 --> 0:02:47.320 hundred bucks for bail. We spoke with Rachel Sodle log Fin, 0:02:47.480 --> 0:02:50.960 vice president of the Pre Trial Justice Institute. She said 0:02:51.160 --> 0:02:54.320 money has now become the primary determining factor of whether 0:02:54.440 --> 0:02:58.360 or not you're released. Her organization advocates for eliminating cash 0:02:58.360 --> 0:03:01.600 bail entirely and max smizing release by moving to a 0:03:01.680 --> 0:03:04.480 risk based system that assesses a defendant's threat to public 0:03:04.520 --> 0:03:07.560 safety if released and his or her likelihood of appearing 0:03:07.560 --> 0:03:11.360 in court. Bail reform isn't a new issue. Speaking at 0:03:11.400 --> 0:03:15.160 the nineteen sixty four National Conference on Bail and Criminal Justice, 0:03:15.280 --> 0:03:18.800 Attorney General Robert Kennedy concluded, what has been made clear 0:03:18.840 --> 0:03:21.360 today in the last two days is that our present 0:03:21.400 --> 0:03:25.560 attitudes toward bail are not only cruel, but really completely illogical. 0:03:25.919 --> 0:03:28.840 What has been demonstrated here is that usually only one 0:03:28.919 --> 0:03:31.720 factor determines whether a defendant stays in jail before he 0:03:31.760 --> 0:03:34.880 comes to trial. That factor is not guilt or innocence. 0:03:35.160 --> 0:03:37.240 It's not the nature of the crime, it's not the 0:03:37.360 --> 0:03:41.080 character of the defendant. The factor is simply money. How 0:03:41.200 --> 0:03:45.240 much money does the defendant have. But despite being on 0:03:45.320 --> 0:03:48.720 reformer's radar for more than fifty years, only recently has 0:03:48.760 --> 0:03:51.960 city and state governments begun to really do something about bail. 0:03:52.480 --> 0:03:56.119 New Jersey passed bail reform and launched its new assessment 0:03:56.120 --> 0:04:00.240 based system in January of The Maryland Supreme Court ruled 0:04:00.280 --> 0:04:03.040 in February of seventeen that defendants can't be held in 0:04:03.120 --> 0:04:06.200 jail pre trial simply because they can't afford bail, and 0:04:06.400 --> 0:04:09.400 bills have been introduced in states like California, Connecticut and 0:04:09.440 --> 0:04:12.000 New York to reduce the reliance on cash bail for 0:04:12.160 --> 0:04:15.840 pre trial release. The bail bond industry has been lobbying 0:04:15.920 --> 0:04:18.719 hard against changes to the cash bail system, which it 0:04:18.760 --> 0:04:21.320 insists is still the best way to ensure that defendants 0:04:21.400 --> 0:04:24.480 won't skip out on their court date. Jeff Clayton is 0:04:24.520 --> 0:04:27.960 executive director of the American Bail Coalition. He takes issue 0:04:27.960 --> 0:04:30.080 with a statistic that seven and ten people in jail 0:04:30.120 --> 0:04:33.640 are awaiting trial and haven't been convicted or sentenced. Clayton 0:04:33.640 --> 0:04:36.599 says that most attainees aren't there because they can't pay bail, 0:04:36.839 --> 0:04:39.279 but because the judge has placed them on other holds 0:04:39.360 --> 0:04:43.719 for violating probation or a pending charge in another jurisdiction. Also, 0:04:43.880 --> 0:04:46.159 to say they haven't been convicted ignores the fact that 0:04:46.200 --> 0:04:49.359 they may have a long history of prior convictions. The 0:04:49.400 --> 0:04:51.960 real question about cash bail, he said, is what would 0:04:51.960 --> 0:04:55.599 the alternative be and would it look any better? For that, 0:04:55.640 --> 0:04:57.960 there's really only one place to look, and that's the 0:04:58.080 --> 0:05:02.160 Pre Trial Services Agency or p s A, headquartered in Washington, 0:05:02.279 --> 0:05:05.560 d C. The p s A, an independent federal agency 0:05:05.600 --> 0:05:08.359 with a forty five year track record, is widely regarded 0:05:08.400 --> 0:05:11.400 as the gold standard of pre trial criminal justice reform. 0:05:11.800 --> 0:05:14.040 While cash bail is still legal in d C and 0:05:14.200 --> 0:05:16.840 used in rare cases, the p s A releases eighty 0:05:16.920 --> 0:05:20.120 percent of defendants on their own recognizance, meaning nothing but 0:05:20.160 --> 0:05:23.120 a pledge to return for trial even without bail. The 0:05:23.160 --> 0:05:26.160 p s A has seen nine of release defendants appear 0:05:26.200 --> 0:05:29.680 at all of their scheduled court dates and remain arrest 0:05:29.720 --> 0:05:33.280 free between pre trial release and their trial date. How 0:05:33.279 --> 0:05:35.440 does it work? The p s A uses a risk 0:05:35.480 --> 0:05:38.680 assessment tool that calculates each defendant's real threat as a 0:05:38.720 --> 0:05:42.600 safety or flight risk, using metrics like the defendant's current charges, 0:05:42.800 --> 0:05:47.160 criminal history, age, and other attributes, race not among them. 0:05:47.240 --> 0:05:50.479 Based on this assessment, the system recommends the least restrictive 0:05:50.680 --> 0:05:54.719 non financial release conditions. Next, a team of p s 0:05:54.720 --> 0:05:57.640 A case workers sits down with each defendant, particularly the 0:05:57.720 --> 0:06:01.320 higher risk individuals, to lower their barrier to success. There's 0:06:01.360 --> 0:06:04.320 on site drug testing and an in house drug treatment facility. 0:06:04.640 --> 0:06:08.120 Defendants with mental health issues are referred to community counseling partners. 0:06:08.640 --> 0:06:10.599 The p s A can provide help with employment and 0:06:10.640 --> 0:06:14.200 housing to help disrupt cycles of poverty and crime. If 0:06:14.200 --> 0:06:16.400 a defendant skips on a court date, the judge doesn't 0:06:16.440 --> 0:06:18.840 automatically issue a bench warrant for his or her arrest. 0:06:19.160 --> 0:06:21.479 The p s A case workers conduct a failure to 0:06:21.520 --> 0:06:24.839 appear investigation, which includes phone calls to the defendant, the 0:06:24.839 --> 0:06:28.200 defendant's family, to other jurisdictions, and even to hospitals if 0:06:28.200 --> 0:06:31.920 the defendant has known health issues. All of this costs money. 0:06:32.279 --> 0:06:34.200 The p s A has three hundred and fifty full 0:06:34.240 --> 0:06:37.840 time employees seventent our case workers, with an annual budget 0:06:37.839 --> 0:06:41.400 of sixty five million dollars. Clayton of the American Bail 0:06:41.440 --> 0:06:45.840 Coalition said supervision and all these alternatives are hugely expensive, 0:06:46.080 --> 0:06:48.440 and noted that New Jersey's new system, which follows the 0:06:48.480 --> 0:06:51.160 p s A model closely, may cost in the hundreds 0:06:51.160 --> 0:06:54.600 of millions of dollars to operate. Leslie Cooper, director of 0:06:54.640 --> 0:06:57.120 the p s A, says that the agency's core tenants, 0:06:57.240 --> 0:07:00.560 risk assessment and release conditions tailored to that risk, are 0:07:00.600 --> 0:07:03.880 scalable and replicable anywhere, and can be customized to fit 0:07:03.920 --> 0:07:07.240 a jurisdiction's budget. What's harder is the culture shift that 0:07:07.279 --> 0:07:11.080 needs to happen from within, Cooper said, if a jurisdictions. 0:07:11.080 --> 0:07:13.600 Culture of criminal justice has developed around the use of 0:07:13.600 --> 0:07:16.280 money bond as a system, particularly money bonds that are 0:07:16.320 --> 0:07:19.239 secured by a third party bail bondsman, it's a huge 0:07:19.280 --> 0:07:22.040 cultural change to tell people that your system can be equally, 0:07:22.080 --> 0:07:25.400 if not more effective, when you take away money. Nothing 0:07:25.440 --> 0:07:27.480 sells the case better than being able to say it 0:07:27.520 --> 0:07:30.480 works and we have the numbers to prove it. The 0:07:30.520 --> 0:07:34.040 bail industry and criminal justice performers rarely see eye to eye, 0:07:34.320 --> 0:07:37.160 but Clayton of the American Bail Coalition agrees that diverting 0:07:37.200 --> 0:07:39.840 some detainees to drug and mental health treatment is the 0:07:39.840 --> 0:07:42.800 way to go. He said, people with mental health and 0:07:42.920 --> 0:07:45.840 drug issues and all these problems, nobody's going to post 0:07:45.880 --> 0:07:47.840 bond for them. Doesn't mean that we need to keep 0:07:47.880 --> 0:07:56.160 these people in jail. No. Today's episode was written by 0:07:56.240 --> 0:07:59.120 Dave Ruse and produced by Tristan McNeil and Tyler Klang. 0:07:59.520 --> 0:08:01.480 For more this a lots of other topics, visit has 0:08:01.480 --> 0:08:03.800 Stuff works dot com and brain Stuff is production of 0:08:03.840 --> 0:08:06.480 by Heart Radio. 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