Speaker 1: Welcome to brain Stuff, a production of I Heart Radio
Speaker 1: Pain brain Stuff. I'm Lauren Vogelbaum and this is another
Speaker 1: classic episode from our archives. This one explores how cash
Speaker 1: bail works and asks whether there might be a better alternative. Hey,
Speaker 1: brain Stuff, Lauren Vogelbam here. If you're arrested in most
Speaker 1: cities and towns in America, you'll be fingerprinted, booked, and
Speaker 1: tossed in a jail cell until the judge sets your bail. Technically,
Speaker 1: bail means any kind of conditional release from custody between
Speaker 1: your arrest and your actual trial date, but in most cases,
Speaker 1: bail means money. Cash bail is one of the oldest
Speaker 1: ways of ensuring that the accused person shows up for trial,
Speaker 1: dating back to the medieval Anglo Saxon's Cash bail allows
Speaker 1: a defendant to be released from jail before trial by
Speaker 1: giving the court cash or collateral. The money or property
Speaker 1: is returned to the defendant if and only if they
Speaker 1: show up to court. Today, most cash bails aren't paid
Speaker 1: directly by the defendant, but by a third party bail
Speaker 1: bonds agent also known as a surety bondsman. That's because
Speaker 1: the cash bail schedules used by most judges X crime
Speaker 1: equals x dollars in bail don't factor in a person's
Speaker 1: ability to pay. For example, if you were to look
Speaker 1: at theeen bail schedule for Orange County, California, you'd see
Speaker 1: that the bail for residential burglary is set at fifty
Speaker 1: thou dollars. A bail bonds agent charges ten percent of
Speaker 1: the full amount, nonrefundable for your release, and promises the
Speaker 1: court to pay the balance if you don't show up.
Speaker 1: They also promised to hunt you down and collect on
Speaker 1: your debt. But bail bonds agents don't have to post
Speaker 1: bail for everybody. Some people, like drug addicts and repeat offenders,
Speaker 1: may be too risky, and others are simply too poor
Speaker 1: to cover the ten percent fee, so they sit in
Speaker 1: jail awaiting trial, sometimes only for a few days, but
Speaker 1: often for months, and in extreme cases, for years. Currently,
Speaker 1: four hundred and forty three thousand people who haven't been
Speaker 1: convicted are sitting in America's jails awaiting trial, according to
Speaker 1: a nonprofit group called the Prison Policy Initiative, that's seven
Speaker 1: out of every ten people in jail who have yet
Speaker 1: to be convicted or sentenced. Note that jails aren't the
Speaker 1: same as prisons. Jails are designed for shorter stays, whether
Speaker 1: it's a short sentence or a pre trial attention. According
Speaker 1: to a report by the Prison Policy Initiative, the total
Speaker 1: number of Americans incarcerated in both jails and prisons is
Speaker 1: more than two point three million. The real crime for
Speaker 1: criminal justice reform groups like this one is that the
Speaker 1: cash bail system produces two very different outcomes depending on
Speaker 1: how much money the defendant can scrape together. A person
Speaker 1: arrested for felony assault who poses a potential safety risk
Speaker 1: to the community could walk free if they make bail.
Speaker 1: A person arrested for misdemeanor shoplifting could sit in jail
Speaker 1: for weeks because they can't come up with a few
Speaker 1: hundred bucks for bail. We spoke with Rachel Sodle log Fin,
Speaker 1: vice president of the Pre Trial Justice Institute. She said
Speaker 1: money has now become the primary determining factor of whether
Speaker 1: or not you're released. Her organization advocates for eliminating cash
Speaker 1: bail entirely and max smizing release by moving to a
Speaker 1: risk based system that assesses a defendant's threat to public
Speaker 1: safety if released and his or her likelihood of appearing
Speaker 1: in court. Bail reform isn't a new issue. Speaking at
Speaker 1: the nineteen sixty four National Conference on Bail and Criminal Justice,
Speaker 1: Attorney General Robert Kennedy concluded, what has been made clear
Speaker 1: today in the last two days is that our present
Speaker 1: attitudes toward bail are not only cruel, but really completely illogical.
Speaker 1: What has been demonstrated here is that usually only one
Speaker 1: factor determines whether a defendant stays in jail before he
Speaker 1: comes to trial. That factor is not guilt or innocence.
Speaker 1: It's not the nature of the crime, it's not the
Speaker 1: character of the defendant. The factor is simply money. How
Speaker 1: much money does the defendant have. But despite being on
Speaker 1: reformer's radar for more than fifty years, only recently has
Speaker 1: city and state governments begun to really do something about bail.
Speaker 1: New Jersey passed bail reform and launched its new assessment
Speaker 1: based system in January of The Maryland Supreme Court ruled
Speaker 1: in February of seventeen that defendants can't be held in
Speaker 1: jail pre trial simply because they can't afford bail, and
Speaker 1: bills have been introduced in states like California, Connecticut and
Speaker 1: New York to reduce the reliance on cash bail for
Speaker 1: pre trial release. The bail bond industry has been lobbying
Speaker 1: hard against changes to the cash bail system, which it
Speaker 1: insists is still the best way to ensure that defendants
Speaker 1: won't skip out on their court date. Jeff Clayton is
Speaker 1: executive director of the American Bail Coalition. He takes issue
Speaker 1: with a statistic that seven and ten people in jail
Speaker 1: are awaiting trial and haven't been convicted or sentenced. Clayton
Speaker 1: says that most attainees aren't there because they can't pay bail,
Speaker 1: but because the judge has placed them on other holds
Speaker 1: for violating probation or a pending charge in another jurisdiction. Also,
Speaker 1: to say they haven't been convicted ignores the fact that
Speaker 1: they may have a long history of prior convictions. The
Speaker 1: real question about cash bail, he said, is what would
Speaker 1: the alternative be and would it look any better? For that,
Speaker 1: there's really only one place to look, and that's the
Speaker 1: Pre Trial Services Agency or p s A, headquartered in Washington,
Speaker 1: d C. The p s A, an independent federal agency
Speaker 1: with a forty five year track record, is widely regarded
Speaker 1: as the gold standard of pre trial criminal justice reform.
Speaker 1: While cash bail is still legal in d C and
Speaker 1: used in rare cases, the p s A releases eighty
Speaker 1: percent of defendants on their own recognizance, meaning nothing but
Speaker 1: a pledge to return for trial even without bail. The
Speaker 1: p s A has seen nine of release defendants appear
Speaker 1: at all of their scheduled court dates and remain arrest
Speaker 1: free between pre trial release and their trial date. How
Speaker 1: does it work? The p s A uses a risk
Speaker 1: assessment tool that calculates each defendant's real threat as a
Speaker 1: safety or flight risk, using metrics like the defendant's current charges,
Speaker 1: criminal history, age, and other attributes, race not among them.
Speaker 1: Based on this assessment, the system recommends the least restrictive
Speaker 1: non financial release conditions. Next, a team of p s
Speaker 1: A case workers sits down with each defendant, particularly the
Speaker 1: higher risk individuals, to lower their barrier to success. There's
Speaker 1: on site drug testing and an in house drug treatment facility.
Speaker 1: Defendants with mental health issues are referred to community counseling partners.
Speaker 1: The p s A can provide help with employment and
Speaker 1: housing to help disrupt cycles of poverty and crime. If
Speaker 1: a defendant skips on a court date, the judge doesn't
Speaker 1: automatically issue a bench warrant for his or her arrest.
Speaker 1: The p s A case workers conduct a failure to
Speaker 1: appear investigation, which includes phone calls to the defendant, the
Speaker 1: defendant's family, to other jurisdictions, and even to hospitals if
Speaker 1: the defendant has known health issues. All of this costs money.
Speaker 1: The p s A has three hundred and fifty full
Speaker 1: time employees seventent our case workers, with an annual budget
Speaker 1: of sixty five million dollars. Clayton of the American Bail
Speaker 1: Coalition said supervision and all these alternatives are hugely expensive,
Speaker 1: and noted that New Jersey's new system, which follows the
Speaker 1: p s A model closely, may cost in the hundreds
Speaker 1: of millions of dollars to operate. Leslie Cooper, director of
Speaker 1: the p s A, says that the agency's core tenants,
Speaker 1: risk assessment and release conditions tailored to that risk, are
Speaker 1: scalable and replicable anywhere, and can be customized to fit
Speaker 1: a jurisdiction's budget. What's harder is the culture shift that
Speaker 1: needs to happen from within, Cooper said, if a jurisdictions.
Speaker 1: Culture of criminal justice has developed around the use of
Speaker 1: money bond as a system, particularly money bonds that are
Speaker 1: secured by a third party bail bondsman, it's a huge
Speaker 1: cultural change to tell people that your system can be equally,
Speaker 1: if not more effective, when you take away money. Nothing
Speaker 1: sells the case better than being able to say it
Speaker 1: works and we have the numbers to prove it. The
Speaker 1: bail industry and criminal justice performers rarely see eye to eye,
Speaker 1: but Clayton of the American Bail Coalition agrees that diverting
Speaker 1: some detainees to drug and mental health treatment is the
Speaker 1: way to go. He said, people with mental health and
Speaker 1: drug issues and all these problems, nobody's going to post
Speaker 1: bond for them. Doesn't mean that we need to keep
Speaker 1: these people in jail. No. Today's episode was written by
Speaker 1: Dave Ruse and produced by Tristan McNeil and Tyler Klang.
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