1 00:00:01,920 --> 00:00:06,480 Speaker 1: Welcome to brain Stuff production of I Heart Radio. Hey 2 00:00:06,559 --> 00:00:09,000 Speaker 1: brain Stuff, I'm Lauren vogel Bomb and this is a 3 00:00:09,000 --> 00:00:12,879 Speaker 1: classic episode from our archives. Today's question has to do 4 00:00:13,000 --> 00:00:16,040 Speaker 1: with one of the many aspects of criminal justice reform 5 00:00:16,200 --> 00:00:19,880 Speaker 1: that's being discussed more seriously as of late. Is there 6 00:00:19,920 --> 00:00:25,400 Speaker 1: a better alternative to cash bail? Hey brain Stuff, Lauren 7 00:00:25,480 --> 00:00:28,360 Speaker 1: Vogel Bomb. Here. If you're arrested in most cities and 8 00:00:28,440 --> 00:00:31,600 Speaker 1: towns in America, you'll be fingerprinted, booked, and tossed in 9 00:00:31,600 --> 00:00:34,840 Speaker 1: a jail cell until the judge sets your bail. Technically, 10 00:00:34,960 --> 00:00:38,120 Speaker 1: bail means any kind of conditional release from custody between 11 00:00:38,120 --> 00:00:41,200 Speaker 1: your arrest and your actual trial date, but in most 12 00:00:41,240 --> 00:00:44,800 Speaker 1: cases bail means money. Cash bail is one of the 13 00:00:44,840 --> 00:00:47,559 Speaker 1: oldest ways of ensuring that the accused person shows up 14 00:00:47,560 --> 00:00:51,120 Speaker 1: for trial, dating back to the medieval Anglo Saxon's Cash 15 00:00:51,159 --> 00:00:53,760 Speaker 1: bail allows a defendant to be released from jail before 16 00:00:53,840 --> 00:00:57,360 Speaker 1: trial by giving the court cash or collateral. The money 17 00:00:57,440 --> 00:01:00,400 Speaker 1: or property is returned to the defendant if andhly if 18 00:01:00,440 --> 00:01:03,680 Speaker 1: they show up to court. Today, most cash bails aren't 19 00:01:03,680 --> 00:01:06,319 Speaker 1: paid directly by the defendant, but by a third party. 20 00:01:06,319 --> 00:01:10,200 Speaker 1: Bail bonds agent, also known as a surety bondsman. That's 21 00:01:10,240 --> 00:01:13,399 Speaker 1: because the cash bail schedules used by most judges X 22 00:01:13,440 --> 00:01:16,440 Speaker 1: crime equals x dollars in bail, don't factor in a 23 00:01:16,480 --> 00:01:19,480 Speaker 1: person's ability to pay. For example, if you were to 24 00:01:19,520 --> 00:01:23,360 Speaker 1: look at theeen bail schedule for Orange County, California, you'd 25 00:01:23,360 --> 00:01:25,840 Speaker 1: see that the bail for residential burglary is set at 26 00:01:25,880 --> 00:01:29,639 Speaker 1: fifty thou dollars. A bail bonds agent charges ten percent 27 00:01:29,680 --> 00:01:32,920 Speaker 1: of the full amount, nonrefundable for your release, and promises 28 00:01:32,959 --> 00:01:35,040 Speaker 1: the court to pay the balance if you don't show up. 29 00:01:35,360 --> 00:01:37,600 Speaker 1: They also promised to hunt you down and collect on 30 00:01:37,600 --> 00:01:40,840 Speaker 1: your debt. But bail bonds agents don't have to post 31 00:01:40,880 --> 00:01:44,400 Speaker 1: bail for everybody. Some people may be too risky, and 32 00:01:44,480 --> 00:01:47,160 Speaker 1: others are simply too poor to cover the ten percent fee, 33 00:01:47,480 --> 00:01:50,280 Speaker 1: so they sit in jail awaiting trial, sometimes only for 34 00:01:50,320 --> 00:01:53,160 Speaker 1: a few days, but often for months, and in extreme cases, 35 00:01:53,200 --> 00:01:57,040 Speaker 1: for years. Currently, four hundred and forty three thousand people 36 00:01:57,080 --> 00:02:00,520 Speaker 1: who haven't been convicted are sitting in America's jails away trial, 37 00:02:00,640 --> 00:02:03,920 Speaker 1: according to a nonprofit group called the Prison Policy Initiative, 38 00:02:04,280 --> 00:02:06,840 Speaker 1: that's seven out of every ten people in jail who 39 00:02:06,880 --> 00:02:09,880 Speaker 1: have yet to be convicted or sentenced. Note that jails 40 00:02:09,880 --> 00:02:12,760 Speaker 1: aren't the same as prisons. Jails are designed for shorter stays, 41 00:02:12,800 --> 00:02:15,680 Speaker 1: whether it's a short sentence or a pre trial detention. 42 00:02:16,800 --> 00:02:20,400 Speaker 1: According to a report by the Prison Policy Initiative, the 43 00:02:20,440 --> 00:02:23,480 Speaker 1: total number of Americans incarcerated in both jails and prisons 44 00:02:23,520 --> 00:02:26,680 Speaker 1: is more than two point three million. The real crime 45 00:02:26,720 --> 00:02:29,400 Speaker 1: for criminal justice reform groups like this one is that 46 00:02:29,440 --> 00:02:32,800 Speaker 1: the cash bail system produces two very different outcomes depending 47 00:02:32,800 --> 00:02:35,480 Speaker 1: on how much money the defendant can scrape together. A 48 00:02:35,520 --> 00:02:38,200 Speaker 1: person arrested for felony assault who poses a potential safety 49 00:02:38,280 --> 00:02:40,720 Speaker 1: risk to the community could walk free if they make bail. 50 00:02:41,080 --> 00:02:43,919 Speaker 1: A person arrested for misdemeanor shoplifting could sit in jail 51 00:02:43,960 --> 00:02:45,600 Speaker 1: for weeks because they can't come up with a few 52 00:02:45,639 --> 00:02:49,400 Speaker 1: hundred bucks for bail. We spoke with Rachel Soddle log FN, 53 00:02:49,480 --> 00:02:52,920 Speaker 1: vice president of the Pre Trial Justice Institute. She said 54 00:02:53,120 --> 00:02:56,320 Speaker 1: money has now become the primary determining factor of whether 55 00:02:56,440 --> 00:03:00,360 Speaker 1: or not you're released. Her organization advocates for eliminating cash 56 00:03:00,360 --> 00:03:03,880 Speaker 1: bail entirely and maximizing release by moving to a risk 57 00:03:03,960 --> 00:03:06,840 Speaker 1: based system that assesses a defendant's threat to public safety 58 00:03:06,880 --> 00:03:10,000 Speaker 1: if released, and his or her likelihood of appearing in court. 59 00:03:10,919 --> 00:03:13,920 Speaker 1: Bail reform isn't a new issue. Speaking at the nineteen 60 00:03:13,960 --> 00:03:17,720 Speaker 1: sixty four National Conference on Bail and Criminal Justice, Attorney 61 00:03:17,760 --> 00:03:21,120 Speaker 1: General Robert Kennedy concluded, what has been made clear today 62 00:03:21,320 --> 00:03:23,880 Speaker 1: in the last two days is that our present attitudes 63 00:03:23,919 --> 00:03:27,520 Speaker 1: toward bail are not only cruel, but really completely illogical. 64 00:03:27,880 --> 00:03:30,799 Speaker 1: What has been demonstrated here is that usually only one 65 00:03:30,880 --> 00:03:33,720 Speaker 1: factor determines whether a defendant stays in jail before he 66 00:03:33,760 --> 00:03:36,840 Speaker 1: comes to trial. That factor is not guilt or innocence. 67 00:03:37,120 --> 00:03:39,240 Speaker 1: It's not the nature of the crime, it's not the 68 00:03:39,320 --> 00:03:43,080 Speaker 1: character of the defendant. The factor is simply money. How 69 00:03:43,160 --> 00:03:47,240 Speaker 1: much money does the defendant have. But despite being on 70 00:03:47,320 --> 00:03:50,680 Speaker 1: reformer's radar for more than fifty years, only recently has 71 00:03:50,760 --> 00:03:53,960 Speaker 1: city and state government's begun to really do something about bail. 72 00:03:54,480 --> 00:03:58,120 Speaker 1: New Jersey passed bail reform and launched its new assessment 73 00:03:58,120 --> 00:04:01,680 Speaker 1: based system in January of seven teen. The Maryland Supreme 74 00:04:01,680 --> 00:04:04,680 Speaker 1: Court ruled in February of seventeen that defendants can't be 75 00:04:04,760 --> 00:04:07,600 Speaker 1: held in jail pre trial simply because they can't afford bail, 76 00:04:08,040 --> 00:04:11,320 Speaker 1: and bills have been introduced in states like California, Connecticut, 77 00:04:11,320 --> 00:04:13,800 Speaker 1: and New York to reduce the reliance on cash bail 78 00:04:13,880 --> 00:04:17,320 Speaker 1: for pre trial release. The bail bond industry has been 79 00:04:17,360 --> 00:04:20,560 Speaker 1: lobbying hard against changes to the cash bail system, which 80 00:04:20,600 --> 00:04:22,800 Speaker 1: it insists is still the best way to ensure that 81 00:04:22,839 --> 00:04:26,320 Speaker 1: defendants won't skip out on their court date. Jeff Clayton 82 00:04:26,440 --> 00:04:29,679 Speaker 1: is executive director of the American Bail Coalition. He takes 83 00:04:29,680 --> 00:04:31,760 Speaker 1: issue with a statistic that seven and ten people in 84 00:04:31,839 --> 00:04:34,880 Speaker 1: jail are awaiting trial and haven't been convicted or sentenced. 85 00:04:35,200 --> 00:04:38,040 Speaker 1: Clayton says that most detainees aren't there because they can't 86 00:04:38,040 --> 00:04:40,440 Speaker 1: pay bail, but because the judge has placed them on 87 00:04:40,520 --> 00:04:44,000 Speaker 1: other holds for violating probation or a pending charge in 88 00:04:44,040 --> 00:04:47,640 Speaker 1: another jurisdiction. Also, to say they haven't been convicted ignores 89 00:04:47,680 --> 00:04:49,520 Speaker 1: the fact that they may have a long history of 90 00:04:49,600 --> 00:04:53,120 Speaker 1: prior convictions. The real question about cash bail, he said, 91 00:04:53,360 --> 00:04:55,520 Speaker 1: is what would the alternative be and would it look 92 00:04:55,520 --> 00:04:59,360 Speaker 1: any better? For that, there's really only one place to look, 93 00:04:59,440 --> 00:05:02,840 Speaker 1: and that's the Pre Trial Services Agency or p s A, 94 00:05:02,880 --> 00:05:06,080 Speaker 1: headquartered in Washington, d C. The p s A an 95 00:05:06,200 --> 00:05:09,080 Speaker 1: independent federal agency with a forty five year track record 96 00:05:09,480 --> 00:05:12,119 Speaker 1: is widely regarded as the gold standard of pre trial 97 00:05:12,160 --> 00:05:15,279 Speaker 1: criminal justice reform. While cash bail is still legal in 98 00:05:15,360 --> 00:05:17,960 Speaker 1: d C and used in rare cases, the p s 99 00:05:17,960 --> 00:05:21,120 Speaker 1: A releases eighty percent of defendants on their own recognizance, 100 00:05:21,360 --> 00:05:24,400 Speaker 1: meaning nothing but a pledge to return for trial even 101 00:05:24,440 --> 00:05:26,919 Speaker 1: without bail. The p s A has seen nine of 102 00:05:26,960 --> 00:05:29,719 Speaker 1: release defendants appear at all of their scheduled court dates 103 00:05:29,920 --> 00:05:33,760 Speaker 1: and remain arrest free between pre trial release and their 104 00:05:33,800 --> 00:05:36,720 Speaker 1: trial date. How does it work. The p s A 105 00:05:36,839 --> 00:05:40,040 Speaker 1: uses a risk assessment tool that calculates each defendant's real 106 00:05:40,120 --> 00:05:43,120 Speaker 1: threat as a safety or flight risk, using metrics like 107 00:05:43,200 --> 00:05:47,320 Speaker 1: the defendant's current charges, criminal history, age, and other attributes, 108 00:05:47,560 --> 00:05:50,800 Speaker 1: race not among them. Based on this assessment, the system 109 00:05:50,800 --> 00:05:55,880 Speaker 1: recommends the least restrictive non financial release conditions. Next, a 110 00:05:55,960 --> 00:05:58,080 Speaker 1: team of p s A case workers sits down with 111 00:05:58,160 --> 00:06:01,560 Speaker 1: each defendant, particularly the higher risk individuals, to lower their 112 00:06:01,600 --> 00:06:04,760 Speaker 1: barriers to success. There's on site drug testing and an 113 00:06:04,800 --> 00:06:08,080 Speaker 1: in house drug treatment facility. Defendants with mental health issues 114 00:06:08,120 --> 00:06:11,080 Speaker 1: are referred to community counseling partners. The p s A 115 00:06:11,160 --> 00:06:14,200 Speaker 1: can provide help with employment and housing to help disrupt cycles. 116 00:06:14,240 --> 00:06:17,120 Speaker 1: Of poverty and crime. If a defendant skips on a 117 00:06:17,160 --> 00:06:19,840 Speaker 1: court date, the judge doesn't automatically issue a bench warrant 118 00:06:19,880 --> 00:06:21,880 Speaker 1: for his or her arrest, the p s A case 119 00:06:21,920 --> 00:06:25,760 Speaker 1: workers conduct a failure to appear investigation, which includes phone 120 00:06:25,760 --> 00:06:28,880 Speaker 1: calls to the defendant, to the defendant's family, to other jurisdictions, 121 00:06:28,920 --> 00:06:31,880 Speaker 1: and even to hospitals if the defendant has known health issues. 122 00:06:32,520 --> 00:06:35,000 Speaker 1: All of this costs money. The p s A has 123 00:06:35,040 --> 00:06:38,719 Speaker 1: three hundred and fifty full time employees seventer case workers, 124 00:06:38,880 --> 00:06:42,520 Speaker 1: with an annual budget of sixty five million dollars. Clayton 125 00:06:42,600 --> 00:06:45,800 Speaker 1: of the American Bail Coalition said supervision and all these 126 00:06:45,800 --> 00:06:49,719 Speaker 1: alternatives are hugely expensive, and noted that New Jersey's new system, 127 00:06:49,800 --> 00:06:52,359 Speaker 1: which follows the p s A model closely, may cost 128 00:06:52,400 --> 00:06:56,080 Speaker 1: in the hundreds of millions of dollars to operate. Leslie Cooper, 129 00:06:56,120 --> 00:06:58,480 Speaker 1: director of the p s A, says that the agency's 130 00:06:58,480 --> 00:07:02,080 Speaker 1: core tenants, risk assessment and release conditions tailored to that risk, 131 00:07:02,400 --> 00:07:05,680 Speaker 1: are scalable and replicable anywhere, and can be customized to 132 00:07:05,680 --> 00:07:09,080 Speaker 1: fit a jurisdiction's budget. What's harder is the culture shift 133 00:07:09,120 --> 00:07:12,280 Speaker 1: that needs to happen from within Cooper said, if a 134 00:07:12,360 --> 00:07:15,440 Speaker 1: jurisdictions culture of criminal justice has developed around the use 135 00:07:15,480 --> 00:07:18,080 Speaker 1: of money bond as a system, particularly money bonds that 136 00:07:18,120 --> 00:07:20,840 Speaker 1: are secured by a third party bail bondsman, it's a 137 00:07:20,920 --> 00:07:23,440 Speaker 1: huge cultural change to tell people that your system can 138 00:07:23,440 --> 00:07:26,559 Speaker 1: be equally, if not more effective when you take away money. 139 00:07:27,120 --> 00:07:29,360 Speaker 1: Nothing sells the case better than being able to say 140 00:07:29,360 --> 00:07:31,440 Speaker 1: it works and we have the numbers to prove it. 141 00:07:32,400 --> 00:07:35,640 Speaker 1: The bail industry and criminal justice performers rarely see eye 142 00:07:35,640 --> 00:07:38,520 Speaker 1: to eye, but Clayton of the American Bail Coalition agrees 143 00:07:38,560 --> 00:07:41,520 Speaker 1: that diverting some detainees to drug and mental health treatment 144 00:07:41,640 --> 00:07:44,360 Speaker 1: is the way to go. He said, people with mental 145 00:07:44,400 --> 00:07:47,480 Speaker 1: health and drug issues and all these problems, nobody's going 146 00:07:47,520 --> 00:07:49,560 Speaker 1: to post bond for them. Doesn't mean that we need 147 00:07:49,600 --> 00:07:56,880 Speaker 1: to keep these people in jail. No Phay's episode was 148 00:07:56,920 --> 00:07:59,640 Speaker 1: originally produced by Tristan Meal and is based on the 149 00:07:59,720 --> 00:08:03,280 Speaker 1: article cash bail punishes poor, but What's the Alternative? On 150 00:08:03,360 --> 00:08:06,680 Speaker 1: how stuff works dot Com written by Dave Rooves. Brain 151 00:08:06,720 --> 00:08:09,120 Speaker 1: Stuff is production of I Heart Radio in partnership with 152 00:08:09,120 --> 00:08:11,760 Speaker 1: how stuff works dot Com and is produced by Tyler Clain. 153 00:08:12,400 --> 00:08:15,000 Speaker 1: For more podcasts from My Heart radio, visit the iHeart 154 00:08:15,080 --> 00:08:17,600 Speaker 1: Radio app, Apple podcasts, or wherever you listen to your 155 00:08:17,600 --> 00:08:18,320 Speaker 1: favorite shows.