WEBVTT - BrainStuff Classics: Is There a Better Alternative to Cash Bail? 0:00:01.920 --> 0:00:06.480 Welcome to brain Stuff production of I Heart Radio. Hey 0:00:06.559 --> 0:00:09.000 brain Stuff, I'm Lauren vogel Bomb and this is a 0:00:09.000 --> 0:00:12.879 classic episode from our archives. Today's question has to do 0:00:13.000 --> 0:00:16.040 with one of the many aspects of criminal justice reform 0:00:16.200 --> 0:00:19.880 that's being discussed more seriously as of late. Is there 0:00:19.920 --> 0:00:25.400 a better alternative to cash bail? Hey brain Stuff, Lauren 0:00:25.480 --> 0:00:28.360 Vogel Bomb. Here. If you're arrested in most cities and 0:00:28.440 --> 0:00:31.600 towns in America, you'll be fingerprinted, booked, and tossed in 0:00:31.600 --> 0:00:34.840 a jail cell until the judge sets your bail. Technically, 0:00:34.960 --> 0:00:38.120 bail means any kind of conditional release from custody between 0:00:38.120 --> 0:00:41.200 your arrest and your actual trial date, but in most 0:00:41.240 --> 0:00:44.800 cases bail means money. Cash bail is one of the 0:00:44.840 --> 0:00:47.559 oldest ways of ensuring that the accused person shows up 0:00:47.560 --> 0:00:51.120 for trial, dating back to the medieval Anglo Saxon's Cash 0:00:51.159 --> 0:00:53.760 bail allows a defendant to be released from jail before 0:00:53.840 --> 0:00:57.360 trial by giving the court cash or collateral. The money 0:00:57.440 --> 0:01:00.400 or property is returned to the defendant if andhly if 0:01:00.440 --> 0:01:03.680 they show up to court. Today, most cash bails aren't 0:01:03.680 --> 0:01:06.319 paid directly by the defendant, but by a third party. 0:01:06.319 --> 0:01:10.200 Bail bonds agent, also known as a surety bondsman. That's 0:01:10.240 --> 0:01:13.399 because the cash bail schedules used by most judges X 0:01:13.440 --> 0:01:16.440 crime equals x dollars in bail, don't factor in a 0:01:16.480 --> 0:01:19.480 person's ability to pay. For example, if you were to 0:01:19.520 --> 0:01:23.360 look at theeen bail schedule for Orange County, California, you'd 0:01:23.360 --> 0:01:25.840 see that the bail for residential burglary is set at 0:01:25.880 --> 0:01:29.639 fifty thou dollars. A bail bonds agent charges ten percent 0:01:29.680 --> 0:01:32.920 of the full amount, nonrefundable for your release, and promises 0:01:32.959 --> 0:01:35.040 the court to pay the balance if you don't show up. 0:01:35.360 --> 0:01:37.600 They also promised to hunt you down and collect on 0:01:37.600 --> 0:01:40.840 your debt. But bail bonds agents don't have to post 0:01:40.880 --> 0:01:44.400 bail for everybody. Some people may be too risky, and 0:01:44.480 --> 0:01:47.160 others are simply too poor to cover the ten percent fee, 0:01:47.480 --> 0:01:50.280 so they sit in jail awaiting trial, sometimes only for 0:01:50.320 --> 0:01:53.160 a few days, but often for months, and in extreme cases, 0:01:53.200 --> 0:01:57.040 for years. Currently, four hundred and forty three thousand people 0:01:57.080 --> 0:02:00.520 who haven't been convicted are sitting in America's jails away trial, 0:02:00.640 --> 0:02:03.920 according to a nonprofit group called the Prison Policy Initiative, 0:02:04.280 --> 0:02:06.840 that's seven out of every ten people in jail who 0:02:06.880 --> 0:02:09.880 have yet to be convicted or sentenced. Note that jails 0:02:09.880 --> 0:02:12.760 aren't the same as prisons. Jails are designed for shorter stays, 0:02:12.800 --> 0:02:15.680 whether it's a short sentence or a pre trial detention. 0:02:16.800 --> 0:02:20.400 According to a report by the Prison Policy Initiative, the 0:02:20.440 --> 0:02:23.480 total number of Americans incarcerated in both jails and prisons 0:02:23.520 --> 0:02:26.680 is more than two point three million. The real crime 0:02:26.720 --> 0:02:29.400 for criminal justice reform groups like this one is that 0:02:29.440 --> 0:02:32.800 the cash bail system produces two very different outcomes depending 0:02:32.800 --> 0:02:35.480 on how much money the defendant can scrape together. A 0:02:35.520 --> 0:02:38.200 person arrested for felony assault who poses a potential safety 0:02:38.280 --> 0:02:40.720 risk to the community could walk free if they make bail. 0:02:41.080 --> 0:02:43.919 A person arrested for misdemeanor shoplifting could sit in jail 0:02:43.960 --> 0:02:45.600 for weeks because they can't come up with a few 0:02:45.639 --> 0:02:49.400 hundred bucks for bail. We spoke with Rachel Soddle log FN, 0:02:49.480 --> 0:02:52.920 vice president of the Pre Trial Justice Institute. She said 0:02:53.120 --> 0:02:56.320 money has now become the primary determining factor of whether 0:02:56.440 --> 0:03:00.360 or not you're released. Her organization advocates for eliminating cash 0:03:00.360 --> 0:03:03.880 bail entirely and maximizing release by moving to a risk 0:03:03.960 --> 0:03:06.840 based system that assesses a defendant's threat to public safety 0:03:06.880 --> 0:03:10.000 if released, and his or her likelihood of appearing in court. 0:03:10.919 --> 0:03:13.920 Bail reform isn't a new issue. Speaking at the nineteen 0:03:13.960 --> 0:03:17.720 sixty four National Conference on Bail and Criminal Justice, Attorney 0:03:17.760 --> 0:03:21.120 General Robert Kennedy concluded, what has been made clear today 0:03:21.320 --> 0:03:23.880 in the last two days is that our present attitudes 0:03:23.919 --> 0:03:27.520 toward bail are not only cruel, but really completely illogical. 0:03:27.880 --> 0:03:30.799 What has been demonstrated here is that usually only one 0:03:30.880 --> 0:03:33.720 factor determines whether a defendant stays in jail before he 0:03:33.760 --> 0:03:36.840 comes to trial. That factor is not guilt or innocence. 0:03:37.120 --> 0:03:39.240 It's not the nature of the crime, it's not the 0:03:39.320 --> 0:03:43.080 character of the defendant. The factor is simply money. How 0:03:43.160 --> 0:03:47.240 much money does the defendant have. But despite being on 0:03:47.320 --> 0:03:50.680 reformer's radar for more than fifty years, only recently has 0:03:50.760 --> 0:03:53.960 city and state government's begun to really do something about bail. 0:03:54.480 --> 0:03:58.120 New Jersey passed bail reform and launched its new assessment 0:03:58.120 --> 0:04:01.680 based system in January of seven teen. The Maryland Supreme 0:04:01.680 --> 0:04:04.680 Court ruled in February of seventeen that defendants can't be 0:04:04.760 --> 0:04:07.600 held in jail pre trial simply because they can't afford bail, 0:04:08.040 --> 0:04:11.320 and bills have been introduced in states like California, Connecticut, 0:04:11.320 --> 0:04:13.800 and New York to reduce the reliance on cash bail 0:04:13.880 --> 0:04:17.320 for pre trial release. The bail bond industry has been 0:04:17.360 --> 0:04:20.560 lobbying hard against changes to the cash bail system, which 0:04:20.600 --> 0:04:22.800 it insists is still the best way to ensure that 0:04:22.839 --> 0:04:26.320 defendants won't skip out on their court date. Jeff Clayton 0:04:26.440 --> 0:04:29.679 is executive director of the American Bail Coalition. He takes 0:04:29.680 --> 0:04:31.760 issue with a statistic that seven and ten people in 0:04:31.839 --> 0:04:34.880 jail are awaiting trial and haven't been convicted or sentenced. 0:04:35.200 --> 0:04:38.040 Clayton says that most detainees aren't there because they can't 0:04:38.040 --> 0:04:40.440 pay bail, but because the judge has placed them on 0:04:40.520 --> 0:04:44.000 other holds for violating probation or a pending charge in 0:04:44.040 --> 0:04:47.640 another jurisdiction. Also, to say they haven't been convicted ignores 0:04:47.680 --> 0:04:49.520 the fact that they may have a long history of 0:04:49.600 --> 0:04:53.120 prior convictions. The real question about cash bail, he said, 0:04:53.360 --> 0:04:55.520 is what would the alternative be and would it look 0:04:55.520 --> 0:04:59.360 any better? For that, there's really only one place to look, 0:04:59.440 --> 0:05:02.840 and that's the Pre Trial Services Agency or p s A, 0:05:02.880 --> 0:05:06.080 headquartered in Washington, d C. The p s A an 0:05:06.200 --> 0:05:09.080 independent federal agency with a forty five year track record 0:05:09.480 --> 0:05:12.119 is widely regarded as the gold standard of pre trial 0:05:12.160 --> 0:05:15.279 criminal justice reform. While cash bail is still legal in 0:05:15.360 --> 0:05:17.960 d C and used in rare cases, the p s 0:05:17.960 --> 0:05:21.120 A releases eighty percent of defendants on their own recognizance, 0:05:21.360 --> 0:05:24.400 meaning nothing but a pledge to return for trial even 0:05:24.440 --> 0:05:26.919 without bail. The p s A has seen nine of 0:05:26.960 --> 0:05:29.719 release defendants appear at all of their scheduled court dates 0:05:29.920 --> 0:05:33.760 and remain arrest free between pre trial release and their 0:05:33.800 --> 0:05:36.720 trial date. How does it work. The p s A 0:05:36.839 --> 0:05:40.040 uses a risk assessment tool that calculates each defendant's real 0:05:40.120 --> 0:05:43.120 threat as a safety or flight risk, using metrics like 0:05:43.200 --> 0:05:47.320 the defendant's current charges, criminal history, age, and other attributes, 0:05:47.560 --> 0:05:50.800 race not among them. Based on this assessment, the system 0:05:50.800 --> 0:05:55.880 recommends the least restrictive non financial release conditions. Next, a 0:05:55.960 --> 0:05:58.080 team of p s A case workers sits down with 0:05:58.160 --> 0:06:01.560 each defendant, particularly the higher risk individuals, to lower their 0:06:01.600 --> 0:06:04.760 barriers to success. There's on site drug testing and an 0:06:04.800 --> 0:06:08.080 in house drug treatment facility. Defendants with mental health issues 0:06:08.120 --> 0:06:11.080 are referred to community counseling partners. The p s A 0:06:11.160 --> 0:06:14.200 can provide help with employment and housing to help disrupt cycles. 0:06:14.240 --> 0:06:17.120 Of poverty and crime. If a defendant skips on a 0:06:17.160 --> 0:06:19.840 court date, the judge doesn't automatically issue a bench warrant 0:06:19.880 --> 0:06:21.880 for his or her arrest, the p s A case 0:06:21.920 --> 0:06:25.760 workers conduct a failure to appear investigation, which includes phone 0:06:25.760 --> 0:06:28.880 calls to the defendant, to the defendant's family, to other jurisdictions, 0:06:28.920 --> 0:06:31.880 and even to hospitals if the defendant has known health issues. 0:06:32.520 --> 0:06:35.000 All of this costs money. The p s A has 0:06:35.040 --> 0:06:38.719 three hundred and fifty full time employees seventer case workers, 0:06:38.880 --> 0:06:42.520 with an annual budget of sixty five million dollars. Clayton 0:06:42.600 --> 0:06:45.800 of the American Bail Coalition said supervision and all these 0:06:45.800 --> 0:06:49.719 alternatives are hugely expensive, and noted that New Jersey's new system, 0:06:49.800 --> 0:06:52.359 which follows the p s A model closely, may cost 0:06:52.400 --> 0:06:56.080 in the hundreds of millions of dollars to operate. Leslie Cooper, 0:06:56.120 --> 0:06:58.480 director of the p s A, says that the agency's 0:06:58.480 --> 0:07:02.080 core tenants, risk assessment and release conditions tailored to that risk, 0:07:02.400 --> 0:07:05.680 are scalable and replicable anywhere, and can be customized to 0:07:05.680 --> 0:07:09.080 fit a jurisdiction's budget. What's harder is the culture shift 0:07:09.120 --> 0:07:12.280 that needs to happen from within Cooper said, if a 0:07:12.360 --> 0:07:15.440 jurisdictions culture of criminal justice has developed around the use 0:07:15.480 --> 0:07:18.080 of money bond as a system, particularly money bonds that 0:07:18.120 --> 0:07:20.840 are secured by a third party bail bondsman, it's a 0:07:20.920 --> 0:07:23.440 huge cultural change to tell people that your system can 0:07:23.440 --> 0:07:26.559 be equally, if not more effective when you take away money. 0:07:27.120 --> 0:07:29.360 Nothing sells the case better than being able to say 0:07:29.360 --> 0:07:31.440 it works and we have the numbers to prove it. 0:07:32.400 --> 0:07:35.640 The bail industry and criminal justice performers rarely see eye 0:07:35.640 --> 0:07:38.520 to eye, but Clayton of the American Bail Coalition agrees 0:07:38.560 --> 0:07:41.520 that diverting some detainees to drug and mental health treatment 0:07:41.640 --> 0:07:44.360 is the way to go. He said, people with mental 0:07:44.400 --> 0:07:47.480 health and drug issues and all these problems, nobody's going 0:07:47.520 --> 0:07:49.560 to post bond for them. Doesn't mean that we need 0:07:49.600 --> 0:07:56.880 to keep these people in jail. No Phay's episode was 0:07:56.920 --> 0:07:59.640 originally produced by Tristan Meal and is based on the 0:07:59.720 --> 0:08:03.280 article cash bail punishes poor, but What's the Alternative? On 0:08:03.360 --> 0:08:06.680 how stuff works dot Com written by Dave Rooves. Brain 0:08:06.720 --> 0:08:09.120 Stuff is production of I Heart Radio in partnership with 0:08:09.120 --> 0:08:11.760 how stuff works dot Com and is produced by Tyler Clain. 0:08:12.400 --> 0:08:15.000 For more podcasts from My Heart radio, visit the iHeart 0:08:15.080 --> 0:08:17.600 Radio app, Apple podcasts, or wherever you listen to your 0:08:17.600 --> 0:08:18.320 favorite shows.