WEBVTT - Is There a Better Alternative to Cash Bail? 0:00:02.040 --> 0:00:07.080 Welcome to brain Stuff from How Stuff Works. Hey, brain Stuff, 0:00:07.160 --> 0:00:10.280 Lauren vocal bomb here. If you're arrested in most cities 0:00:10.280 --> 0:00:13.480 and towns in America, you'll be fingerprinted, booked, and tossed 0:00:13.480 --> 0:00:16.800 in a jail cell until the judge sets your bail. Technically, 0:00:16.920 --> 0:00:20.080 bail means any kind of conditional release from custody between 0:00:20.120 --> 0:00:23.200 your arrest and your actual trial date, but in most 0:00:23.200 --> 0:00:26.799 cases bail means money. Cash bail is one of the 0:00:26.800 --> 0:00:29.520 oldest ways of ensuring that the accused person shows up 0:00:29.560 --> 0:00:33.120 for trial, dating back to the medieval Anglo Saxon's cash 0:00:33.159 --> 0:00:35.760 bail allows a defendant to be released from jail before 0:00:35.840 --> 0:00:39.320 trial by giving the court cash or collateral. The money 0:00:39.400 --> 0:00:42.080 or property is returned to the defendant if and only 0:00:42.159 --> 0:00:45.360 if they show up to court. Today, most cash bails 0:00:45.400 --> 0:00:47.960 aren't paid directly by the defendant, but by a third 0:00:47.960 --> 0:00:51.440 party bail bonds agent also known as a surety bondsman. 0:00:52.000 --> 0:00:54.840 That's because the cash bail schedules used by most judges 0:00:55.280 --> 0:00:58.280 X crime equals x dollars in bail don't factor in 0:00:58.320 --> 0:01:01.319 a person's ability to pay. For example, if you were 0:01:01.360 --> 0:01:04.880 to look at the twenty eighteen bail schedule for Orange County, California, 0:01:05.120 --> 0:01:07.680 you'd see that the bail for residential burglary is set 0:01:07.720 --> 0:01:11.240 at fifty thousand dollars. A bail bonds agent charges ten 0:01:11.280 --> 0:01:14.240 percent of the full amount, nonrefundable for your release, and 0:01:14.400 --> 0:01:16.600 promises the court to pay the balance if you don't 0:01:16.600 --> 0:01:19.160 show up. They also promised to hunt you down and 0:01:19.160 --> 0:01:22.360 collect on your debt. But bail bonds agents don't have 0:01:22.440 --> 0:01:25.600 to post bail for everybody. Some people, like drug addicts 0:01:25.600 --> 0:01:28.840 and repeat offenders, may be too risky, and others are 0:01:28.840 --> 0:01:31.520 simply too poor to cover the ten percent fee, so 0:01:31.680 --> 0:01:34.319 they sit in jail awaiting trial, sometimes only for a 0:01:34.319 --> 0:01:37.080 few days, but often for months, and in extreme cases, 0:01:37.120 --> 0:01:40.959 for years. Currently, four hundred and forty three thousand people 0:01:41.000 --> 0:01:44.400 who haven't been convicted are sitting in America's jails awaiting trial, 0:01:44.560 --> 0:01:47.840 according to a nonprofit group called the Prison Policy Initiative, 0:01:48.200 --> 0:01:50.760 that's seven out of every ten people in jail who 0:01:50.800 --> 0:01:53.800 have yet to be convicted or sentenced. Note that jails 0:01:53.800 --> 0:01:56.680 aren't the same as prisons. Jails are designed for shorter stays, 0:01:56.720 --> 0:01:59.600 whether it's a short sentence or a pre trial detention. 0:02:00.720 --> 0:02:04.320 According to a report by the Prison policy Initiative. The 0:02:04.360 --> 0:02:07.400 total number of Americans incarcerated in both jails and prisons 0:02:07.440 --> 0:02:10.600 is more than two point three million. The real crime 0:02:10.639 --> 0:02:13.320 for criminal justice reform groups like this one is that 0:02:13.360 --> 0:02:16.720 the cash bail system produces two very different outcomes depending 0:02:16.720 --> 0:02:19.400 on how much money the defendant can scrape together. A 0:02:19.440 --> 0:02:22.120 person arrested for felony assault who poses a potential safety 0:02:22.200 --> 0:02:24.640 risk to the community could walk free if they make bail. 0:02:25.000 --> 0:02:27.839 A person arrested for misdemeanor shoplifting could sit in jail 0:02:27.880 --> 0:02:29.520 for weeks because they can't come up with a few 0:02:29.560 --> 0:02:33.240 hundred bucks for bail. We spoke with Rachel Soddle log Vin, 0:02:33.400 --> 0:02:36.840 vice president of the Pre Trial Justice Institute. She said 0:02:37.040 --> 0:02:40.200 money has now become the primary determining factor of whether 0:02:40.320 --> 0:02:44.240 or not you're released. Her organization advocates for eliminating cash 0:02:44.280 --> 0:02:47.799 bail entirely and maximizing release by moving to a risk 0:02:47.880 --> 0:02:50.760 based system that assesses a defendant's threat to public safety 0:02:50.800 --> 0:02:53.919 if released and his or her likelihood of appearing in court. 0:02:54.840 --> 0:02:57.840 Bail reform isn't a new issue. Speaking at the nineteen 0:02:57.880 --> 0:03:01.040 sixty four National Conference on Bail, Ail and Criminal Justice, 0:03:01.200 --> 0:03:04.680 Attorney General Robert Kennedy concluded, what has been made clear 0:03:04.720 --> 0:03:07.240 today in the last two days is that our present 0:03:07.280 --> 0:03:11.440 attitudes toward bail are not only cruel, but really completely illogical. 0:03:11.800 --> 0:03:14.720 What has been demonstrated here is that usually only one 0:03:14.800 --> 0:03:17.640 factor determines whether a defendant stays in jail before he 0:03:17.680 --> 0:03:20.760 comes to trial. That factor is not guilt or innocence. 0:03:21.040 --> 0:03:23.160 It's not the nature of the crime, it's not the 0:03:23.240 --> 0:03:27.000 character of the defendant. The factor is simply money. How 0:03:27.080 --> 0:03:31.160 much money does the defendant have. But despite being on 0:03:31.240 --> 0:03:34.600 reformer's radar for more than fifty years, only recently has 0:03:34.680 --> 0:03:37.880 city and state governments begun to really do something about bail. 0:03:38.400 --> 0:03:42.000 New Jersey passed bail reform and launched its new assessment 0:03:42.040 --> 0:03:46.160 based system in January of The Maryland Supreme Court ruled 0:03:46.160 --> 0:03:48.920 in February of seventeen that defendants can't be held in 0:03:49.000 --> 0:03:52.120 jail pre trial simply because they can't afford bail, and 0:03:52.320 --> 0:03:55.320 bills have been introduced in states like California, Connecticut, and 0:03:55.320 --> 0:03:57.880 New York to reduce the reliance on cash bail for 0:03:58.040 --> 0:04:01.240 pre trial release. The bill a bond industry has been 0:04:01.280 --> 0:04:04.480 lobbying hard against changes to the cash bail system which 0:04:04.520 --> 0:04:06.720 it insists is still the best way to ensure that 0:04:06.760 --> 0:04:10.240 defendants won't skip out on their court date. Jeff Clayton 0:04:10.360 --> 0:04:13.600 is executive director of the American Bail Coalition. He takes 0:04:13.600 --> 0:04:15.680 issue with a statistic that seven and ten people in 0:04:15.760 --> 0:04:18.760 jail are awaiting trial and haven't been convicted or sentenced. 0:04:19.120 --> 0:04:21.960 Clayton says that most detainees aren't there because they can't 0:04:21.960 --> 0:04:24.359 pay bail, but because the judge has placed them on 0:04:24.440 --> 0:04:27.919 other holds for violating probation or a pending charge in 0:04:27.960 --> 0:04:31.560 another jurisdiction. Also, to say they haven't been convicted ignores 0:04:31.600 --> 0:04:33.440 the fact that they may have a long history of 0:04:33.520 --> 0:04:37.080 prior convictions. The real question about cash bail, he said, 0:04:37.279 --> 0:04:39.440 is what would the alternative be and would it look 0:04:39.440 --> 0:04:43.280 any better? For that, there's really only one place to look, 0:04:43.360 --> 0:04:46.760 and that's the Pre Trial Services Agency or p s A, 0:04:46.800 --> 0:04:49.960 headquartered in Washington, d C. The p s A, and 0:04:50.120 --> 0:04:53.040 independent federal agency with a forty five year track record, 0:04:53.400 --> 0:04:56.039 is widely regarded as the gold standard of pre trial 0:04:56.080 --> 0:04:59.200 criminal justice reform. While cash bail is still legal in 0:04:59.279 --> 0:05:01.839 d C and used in rare cases, the p s 0:05:01.880 --> 0:05:05.040 A releases eighty percent of defendants on their own recognizance, 0:05:05.279 --> 0:05:08.320 meaning nothing but a pledge to return for trial even 0:05:08.320 --> 0:05:10.839 without bail. The p s A has seen nine of 0:05:10.880 --> 0:05:13.640 release defendants appear at all of their scheduled court dates 0:05:13.839 --> 0:05:17.680 and remain arrest free between pre trial release and their 0:05:17.720 --> 0:05:20.640 trial date. How does it work? The p s A 0:05:20.760 --> 0:05:23.960 uses a risk assessment tool that calculates each defendant's real 0:05:24.040 --> 0:05:27.039 threat as a safety or flight risk, using metrics like 0:05:27.120 --> 0:05:31.240 the defendant's current charges, criminal history, age, and other attributes, 0:05:31.480 --> 0:05:34.679 race not among them. Based on this assessment, the system 0:05:34.720 --> 0:05:39.800 recommends the least restrictive non financial release conditions. Next, a 0:05:39.880 --> 0:05:42.000 team of p s A case workers sits down with 0:05:42.080 --> 0:05:45.480 each defendant, particularly the higher risk individuals, to lower their 0:05:45.520 --> 0:05:48.680 barriers to success. There's on site drug testing and an 0:05:48.720 --> 0:05:52.000 in house drug treatment facility. Defendants with mental health issues 0:05:52.000 --> 0:05:55.000 are referred to community counseling partners. The p s A 0:05:55.080 --> 0:05:57.720 can provide help with employment and housing to help disrupt 0:05:57.760 --> 0:06:00.920 cycles of poverty and crime. If a defendant skips on 0:06:00.960 --> 0:06:03.479 a court date, the judge doesn't automatically issue a bench 0:06:03.520 --> 0:06:05.560 warrant for his or her arrest, the p s A 0:06:05.600 --> 0:06:09.400 case workers conduct a failure to appear investigation, which includes 0:06:09.440 --> 0:06:11.800 phone calls to the defendant, to the defendant's family, to 0:06:11.880 --> 0:06:14.920 other jurisdictions, and even to hospitals if the defendant has 0:06:14.920 --> 0:06:18.360 known health issues. All of this costs money. The p 0:06:18.520 --> 0:06:20.840 s A has three hundred and fifty full time employees 0:06:20.960 --> 0:06:24.400 sur case workers, with an annual budget of sixty five 0:06:24.440 --> 0:06:29.080 million dollars. Clayton of the American Bail Coalition said supervision 0:06:29.160 --> 0:06:32.520 and all these alternatives are hugely expensive, and noted that 0:06:32.560 --> 0:06:34.719 New Jersey's new system, which follows the p s A 0:06:34.760 --> 0:06:37.599 model closely, may cost in the hundreds of millions of 0:06:37.640 --> 0:06:41.040 dollars to operate. Leslie Cooper, director of the p s A, 0:06:41.400 --> 0:06:44.400 says that the agency's core tenants, risk assessment and release 0:06:44.440 --> 0:06:48.240 conditions tailored to that risk, are scalable and replicable anywhere, 0:06:48.440 --> 0:06:51.600 and can be customized to fit a jurisdictions budget. What's 0:06:51.640 --> 0:06:54.240 harder is the culture shift that needs to happen from within. 0:06:55.000 --> 0:06:58.360 Cooper said. If a jurisdictions culture of criminal justice has 0:06:58.400 --> 0:07:00.680 developed around the use of money bond as a system, 0:07:00.760 --> 0:07:03.400 particularly money bonds that are secured by a third party 0:07:03.400 --> 0:07:06.599 bail bondsman, it's a huge cultural change to tell people 0:07:06.600 --> 0:07:09.159 that your system can be equally, if not more effective, 0:07:09.200 --> 0:07:12.280 when you take away money. Nothing sells the case better 0:07:12.320 --> 0:07:14.360 than being able to say it works and we have 0:07:14.400 --> 0:07:17.720 the numbers to prove it. The bail industry and criminal 0:07:17.760 --> 0:07:20.840 justice performers rarely see eye to eye, but Clayton of 0:07:20.840 --> 0:07:24.000 the American Bail Coalition agrees that diverting some detainees to 0:07:24.120 --> 0:07:26.200 drug and mental health treatment is the way to go. 0:07:26.680 --> 0:07:29.640 He said, people with mental health and drug issues and 0:07:29.720 --> 0:07:32.640 all these problems, nobody's going to post bond for them. 0:07:32.680 --> 0:07:35.200 Doesn't mean that we need to keep these people in jail. No. 0:07:40.520 --> 0:07:43.000 Today's episode was written by Dave Ruse and produced by 0:07:43.000 --> 0:07:45.440 Tyler Klang. For more on this and lots of other 0:07:45.520 --> 0:08:00.320 judicial topics, visit our home planet, how Stuff Works dot com.