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Speaker 1: Welcome to brain Stuff from How Stuff Works. Hey, brain Stuff,

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Speaker 1: Lauren vocal bomb here. If you're arrested in most cities

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Speaker 1: and towns in America, you'll be fingerprinted, booked, and tossed

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Speaker 1: in a jail cell until the judge sets your bail. Technically,

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Speaker 1: bail means any kind of conditional release from custody between

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Speaker 1: your arrest and your actual trial date, but in most

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Speaker 1: cases bail means money. Cash bail is one of the

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Speaker 1: oldest ways of ensuring that the accused person shows up

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Speaker 1: for trial, dating back to the medieval Anglo Saxon's cash

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Speaker 1: bail allows a defendant to be released from jail before

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Speaker 1: trial by giving the court cash or collateral. The money

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Speaker 1: or property is returned to the defendant if and only

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Speaker 1: if they show up to court. Today, most cash bails

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Speaker 1: aren't paid directly by the defendant, but by a third

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Speaker 1: party bail bonds agent also known as a surety bondsman.

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Speaker 1: That's because the cash bail schedules used by most judges

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Speaker 1: X crime equals x dollars in bail don't factor in

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Speaker 1: a person's ability to pay. For example, if you were

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Speaker 1: to look at the twenty eighteen bail schedule for Orange County, California,

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Speaker 1: you'd see that the bail for residential burglary is set

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Speaker 1: at fifty thousand dollars. A bail bonds agent charges ten

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Speaker 1: percent of the full amount, nonrefundable for your release, and

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Speaker 1: promises the court to pay the balance if you don't

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Speaker 1: show up. They also promised to hunt you down and

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Speaker 1: collect on your debt. But bail bonds agents don't have

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Speaker 1: to post bail for everybody. Some people, like drug addicts

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Speaker 1: and repeat offenders, may be too risky, and others are

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Speaker 1: simply too poor to cover the ten percent fee, so

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Speaker 1: they sit in jail awaiting trial, sometimes only for a

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Speaker 1: few days, but often for months, and in extreme cases,

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Speaker 1: for years. Currently, four hundred and forty three thousand people

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Speaker 1: who haven't been convicted are sitting in America's jails awaiting trial,

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Speaker 1: according to a nonprofit group called the Prison Policy Initiative,

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Speaker 1: that's seven out of every ten people in jail who

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Speaker 1: have yet to be convicted or sentenced. Note that jails

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Speaker 1: aren't the same as prisons. Jails are designed for shorter stays,

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Speaker 1: whether it's a short sentence or a pre trial detention.

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Speaker 1: According to a report by the Prison policy Initiative. The

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Speaker 1: total number of Americans incarcerated in both jails and prisons

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Speaker 1: is more than two point three million. The real crime

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Speaker 1: for criminal justice reform groups like this one is that

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Speaker 1: the cash bail system produces two very different outcomes depending

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Speaker 1: on how much money the defendant can scrape together. A

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Speaker 1: person arrested for felony assault who poses a potential safety

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Speaker 1: risk to the community could walk free if they make bail.

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Speaker 1: A person arrested for misdemeanor shoplifting could sit in jail

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Speaker 1: for weeks because they can't come up with a few

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Speaker 1: hundred bucks for bail. We spoke with Rachel Soddle log Vin,

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Speaker 1: vice president of the Pre Trial Justice Institute. She said

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Speaker 1: money has now become the primary determining factor of whether

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Speaker 1: or not you're released. Her organization advocates for eliminating cash

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Speaker 1: bail entirely and maximizing release by moving to a risk

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Speaker 1: based system that assesses a defendant's threat to public safety

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Speaker 1: if released and his or her likelihood of appearing in court.

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Speaker 1: Bail reform isn't a new issue. Speaking at the nineteen

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Speaker 1: sixty four National Conference on Bail, Ail and Criminal Justice,

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Speaker 1: Attorney General Robert Kennedy concluded, what has been made clear

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Speaker 1: today in the last two days is that our present

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Speaker 1: attitudes toward bail are not only cruel, but really completely illogical.

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Speaker 1: What has been demonstrated here is that usually only one

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Speaker 1: factor determines whether a defendant stays in jail before he

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Speaker 1: comes to trial. That factor is not guilt or innocence.

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Speaker 1: It's not the nature of the crime, it's not the

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Speaker 1: character of the defendant. The factor is simply money. How

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Speaker 1: much money does the defendant have. But despite being on

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Speaker 1: reformer's radar for more than fifty years, only recently has

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Speaker 1: city and state governments begun to really do something about bail.

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Speaker 1: New Jersey passed bail reform and launched its new assessment

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Speaker 1: based system in January of The Maryland Supreme Court ruled

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Speaker 1: in February of seventeen that defendants can't be held in

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Speaker 1: jail pre trial simply because they can't afford bail, and

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Speaker 1: bills have been introduced in states like California, Connecticut, and

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Speaker 1: New York to reduce the reliance on cash bail for

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Speaker 1: pre trial release. The bill a bond industry has been

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Speaker 1: lobbying hard against changes to the cash bail system which

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Speaker 1: it insists is still the best way to ensure that

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Speaker 1: defendants won't skip out on their court date. Jeff Clayton

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Speaker 1: is executive director of the American Bail Coalition. He takes

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Speaker 1: issue with a statistic that seven and ten people in

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Speaker 1: jail are awaiting trial and haven't been convicted or sentenced.

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Speaker 1: Clayton says that most detainees aren't there because they can't

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Speaker 1: pay bail, but because the judge has placed them on

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Speaker 1: other holds for violating probation or a pending charge in

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Speaker 1: another jurisdiction. Also, to say they haven't been convicted ignores

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Speaker 1: the fact that they may have a long history of

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Speaker 1: prior convictions. The real question about cash bail, he said,

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Speaker 1: is what would the alternative be and would it look

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Speaker 1: any better? For that, there's really only one place to look,

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Speaker 1: and that's the Pre Trial Services Agency or p s A,

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Speaker 1: headquartered in Washington, d C. The p s A, and

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Speaker 1: independent federal agency with a forty five year track record,

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Speaker 1: is widely regarded as the gold standard of pre trial

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Speaker 1: criminal justice reform. While cash bail is still legal in

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Speaker 1: d C and used in rare cases, the p s

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Speaker 1: A releases eighty percent of defendants on their own recognizance,

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Speaker 1: meaning nothing but a pledge to return for trial even

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Speaker 1: without bail. The p s A has seen nine of

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Speaker 1: release defendants appear at all of their scheduled court dates

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Speaker 1: and remain arrest free between pre trial release and their

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Speaker 1: trial date. How does it work? The p s A

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Speaker 1: uses a risk assessment tool that calculates each defendant's real

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Speaker 1: threat as a safety or flight risk, using metrics like

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Speaker 1: the defendant's current charges, criminal history, age, and other attributes,

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Speaker 1: race not among them. Based on this assessment, the system

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Speaker 1: recommends the least restrictive non financial release conditions. Next, a

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Speaker 1: team of p s A case workers sits down with

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Speaker 1: each defendant, particularly the higher risk individuals, to lower their

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Speaker 1: barriers to success. There's on site drug testing and an

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Speaker 1: in house drug treatment facility. Defendants with mental health issues

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Speaker 1: are referred to community counseling partners. The p s A

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Speaker 1: can provide help with employment and housing to help disrupt

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Speaker 1: cycles of poverty and crime. If a defendant skips on

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Speaker 1: a court date, the judge doesn't automatically issue a bench

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Speaker 1: warrant for his or her arrest, the p s A

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Speaker 1: case workers conduct a failure to appear investigation, which includes

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Speaker 1: phone calls to the defendant, to the defendant's family, to

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Speaker 1: other jurisdictions, and even to hospitals if the defendant has

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Speaker 1: known health issues. All of this costs money. The p

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Speaker 1: s A has three hundred and fifty full time employees

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Speaker 1: sur case workers, with an annual budget of sixty five

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Speaker 1: million dollars. Clayton of the American Bail Coalition said supervision

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Speaker 1: and all these alternatives are hugely expensive, and noted that

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Speaker 1: New Jersey's new system, which follows the p s A

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Speaker 1: model closely, may cost in the hundreds of millions of

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Speaker 1: dollars to operate. Leslie Cooper, director of the p s A,

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Speaker 1: says that the agency's core tenants, risk assessment and release

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Speaker 1: conditions tailored to that risk, are scalable and replicable anywhere,

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Speaker 1: and can be customized to fit a jurisdictions budget. What's

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Speaker 1: harder is the culture shift that needs to happen from within.

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Speaker 1: Cooper said. If a jurisdictions culture of criminal justice has

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Speaker 1: developed around the use of money bond as a system,

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Speaker 1: particularly money bonds that are secured by a third party

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Speaker 1: bail bondsman, it's a huge cultural change to tell people

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Speaker 1: that your system can be equally, if not more effective,

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Speaker 1: when you take away money. Nothing sells the case better

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Speaker 1: than being able to say it works and we have

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Speaker 1: the numbers to prove it. The bail industry and criminal

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Speaker 1: justice performers rarely see eye to eye, but Clayton of

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Speaker 1: the American Bail Coalition agrees that diverting some detainees to

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Speaker 1: drug and mental health treatment is the way to go.

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Speaker 1: He said, people with mental health and drug issues and

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Speaker 1: all these problems, nobody's going to post bond for them.

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Speaker 1: Doesn't mean that we need to keep these people in jail. No.

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Speaker 1: Today's episode was written by Dave Ruse and produced by

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Speaker 1: Tyler Klang. For more on this and lots of other

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Speaker 1: judicial topics, visit our home planet, how Stuff Works dot com.