March 9, 2018 • 8 mins
Cash bail punishes the poor by setting a high price on freedom -- literally. But are there any better alternatives that won't break local governments' budgets? We explore in this episode of BrainStuff.
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Episode Transcript
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Speaker 1 (00:02):
Welcome to brain Stuff from How Stuff Works. Hey, brain Stuff,
Lauren vocal bomb here. If you're arrested in most cities
and towns in America, you'll be fingerprinted, booked, and tossed
in a jail cell until the judge sets your bail. Technically,
bail means any kind of conditional release from custody between
your arrest and your actual trial date, but in most
(00:23):
cases bail means money. Cash bail is one of the
oldest ways of ensuring that the accused person shows up
for trial, dating back to the medieval Anglo Saxon's cash
bail allows a defendant to be released from jail before
trial by giving the court cash or collateral. The money
or property is returned to the defendant if and only
if they show up to court. Today, most cash bails
(00:45):
aren't paid directly by the defendant, but by a third
party bail bonds agent also known as a surety bondsman.
That's because the cash bail schedules used by most judges
X crime equals x dollars in bail don't factor in
a person's ability to pay. For example, if you were
to look at the twenty eighteen bail schedule for Orange County, California,
you'd see that the bail for residential burglary is set
(01:07):
at fifty thousand dollars. A bail bonds agent charges ten
percent of the full amount, nonrefundable for your release, and
promises the court to pay the balance if you don't
show up. They also promised to hunt you down and
collect on your debt. But bail bonds agents don't have
to post bail for everybody. Some people, like drug addicts
and repeat offenders, may be too risky, and others are
(01:28):
simply too poor to cover the ten percent fee, so
they sit in jail awaiting trial, sometimes only for a
few days, but often for months, and in extreme cases,
for years. Currently, four hundred and forty three thousand people
who haven't been convicted are sitting in America's jails awaiting trial,
according to a nonprofit group called the Prison Policy Initiative,
that's seven out of every ten people in jail who
(01:50):
have yet to be convicted or sentenced. Note that jails
aren't the same as prisons. Jails are designed for shorter stays,
whether it's a short sentence or a pre trial detention.
According to a report by the Prison policy Initiative. The
total number of Americans incarcerated in both jails and prisons
is more than two point three million. The real crime
for criminal justice reform groups like this one is that
(02:13):
the cash bail system produces two very different outcomes depending
on how much money the defendant can scrape together. A
person arrested for felony assault who poses a potential safety
risk to the community could walk free if they make bail.
A person arrested for misdemeanor shoplifting could sit in jail
for weeks because they can't come up with a few
hundred bucks for bail. We spoke with Rachel Soddle log Vin,
(02:33):
vice president of the Pre Trial Justice Institute. She said
money has now become the primary determining factor of whether
or not you're released. Her organization advocates for eliminating cash
bail entirely and maximizing release by moving to a risk
based system that assesses a defendant's threat to public safety
if released and his or her likelihood of appearing in court.
(02:54):
Bail reform isn't a new issue. Speaking at the nineteen
sixty four National Conference on Bail, Ail and Criminal Justice,
Attorney General Robert Kennedy concluded, what has been made clear
today in the last two days is that our present
attitudes toward bail are not only cruel, but really completely illogical.
What has been demonstrated here is that usually only one
factor determines whether a defendant stays in jail before he
(03:17):
comes to trial. That factor is not guilt or innocence.
It's not the nature of the crime, it's not the
character of the defendant. The factor is simply money. How
much money does the defendant have. But despite being on
reformer's radar for more than fifty years, only recently has
city and state governments begun to really do something about bail.
(03:38):
New Jersey passed bail reform and launched its new assessment
based system in January of The Maryland Supreme Court ruled
in February of seventeen that defendants can't be held in
jail pre trial simply because they can't afford bail, and
bills have been introduced in states like California, Connecticut, and
New York to reduce the reliance on cash bail for
pre trial release. The bill a bond industry has been
(04:01):
lobbying hard against changes to the cash bail system which
it insists is still the best way to ensure that
defendants won't skip out on their court date. Jeff Clayton
is executive director of the American Bail Coalition. He takes
issue with a statistic that seven and ten people in
jail are awaiting trial and haven't been convicted or sentenced.
Clayton says that most detainees aren't there because they can't
(04:21):
pay bail, but because the judge has placed them on
other holds for violating probation or a pending charge in
another jurisdiction. Also, to say they haven't been convicted ignores
the fact that they may have a long history of
prior convictions. The real question about cash bail, he said,
is what would the alternative be and would it look
any better? For that, there's really only one place to look,
(04:43):
and that's the Pre Trial Services Agency or p s A,
headquartered in Washington, d C. The p s A, and
independent federal agency with a forty five year track record,
is widely regarded as the gold standard of pre trial
criminal justice reform. While cash bail is still legal in
d C and used in rare cases, the p s
A releases eighty percent of defendants on their own recognizance,
(05:05):
meaning nothing but a pledge to return for trial even
without bail. The p s A has seen nine of
release defendants appear at all of their scheduled court dates
and remain arrest free between pre trial release and their
trial date. How does it work? The p s A
uses a risk assessment tool that calculates each defendant's real
threat as a safety or flight risk, using metrics like
(05:27):
the defendant's current charges, criminal history, age, and other attributes,
race not among them. Based on this assessment, the system
recommends the least restrictive non financial release conditions. Next, a
team of p s A case workers sits down with
each defendant, particularly the higher risk individuals, to lower their
barriers to success. There's on site drug testing and an
(05:48):
in house drug treatment facility. Defendants with mental health issues
are referred to community counseling partners. The p s A
can provide help with employment and housing to help disrupt
cycles of poverty and crime. If a defendant skips on
a court date, the judge doesn't automatically issue a bench
warrant for his or her arrest, the p s A
case workers conduct a failure to appear investigation, which includes
(06:09):
phone calls to the defendant, to the defendant's family, to
other jurisdictions, and even to hospitals if the defendant has
known health issues. All of this costs money. The p
s A has three hundred and fifty full time employees
sur case workers, with an annual budget of sixty five
million dollars. Clayton of the American Bail Coalition said supervision
and all these alternatives are hugely expensive, and noted that
(06:32):
New Jersey's new system, which follows the p s A
model closely, may cost in the hundreds of millions of
dollars to operate. Leslie Cooper, director of the p s A,
says that the agency's core tenants, risk assessment and release
conditions tailored to that risk, are scalable and replicable anywhere,
and can be customized to fit a jurisdictions budget. What's
harder is the culture shift that needs to happen from within.
(06:55):
Cooper said. If a jurisdictions culture of criminal justice has
developed around the use of money bond as a system,
particularly money bonds that are secured by a third party
bail bondsman, it's a huge cultural change to tell people
that your system can be equally, if not more effective,
when you take away money. Nothing sells the case better
than being able to say it works and we have
the numbers to prove it. The bail industry and criminal
(07:17):
justice performers rarely see eye to eye, but Clayton of
the American Bail Coalition agrees that diverting some detainees to
drug and mental health treatment is the way to go.
He said, people with mental health and drug issues and
all these problems, nobody's going to post bond for them.
Doesn't mean that we need to keep these people in jail. No.
(07:40):
Today's episode was written by Dave Ruse and produced by
Tyler Klang. For more on this and lots of other
judicial topics, visit our home planet, how Stuff Works dot com.
Welcome to brain Stuff from How Stuff Works. Hey, brain Stuff,
Lauren vocal bomb here. If you're arrested in most cities
and towns in America, you'll be fingerprinted, booked, and tossed
in a jail cell until the judge sets your bail. Technically,
bail means any kind of conditional release from custody between
your arrest and your actual trial date, but in most
(00:23):
cases bail means money. Cash bail is one of the
oldest ways of ensuring that the accused person shows up
for trial, dating back to the medieval Anglo Saxon's cash
bail allows a defendant to be released from jail before
trial by giving the court cash or collateral. The money
or property is returned to the defendant if and only
if they show up to court. Today, most cash bails
(00:45):
aren't paid directly by the defendant, but by a third
party bail bonds agent also known as a surety bondsman.
That's because the cash bail schedules used by most judges
X crime equals x dollars in bail don't factor in
a person's ability to pay. For example, if you were
to look at the twenty eighteen bail schedule for Orange County, California,
you'd see that the bail for residential burglary is set
(01:07):
at fifty thousand dollars. A bail bonds agent charges ten
percent of the full amount, nonrefundable for your release, and
promises the court to pay the balance if you don't
show up. They also promised to hunt you down and
collect on your debt. But bail bonds agents don't have
to post bail for everybody. Some people, like drug addicts
and repeat offenders, may be too risky, and others are
(01:28):
simply too poor to cover the ten percent fee, so
they sit in jail awaiting trial, sometimes only for a
few days, but often for months, and in extreme cases,
for years. Currently, four hundred and forty three thousand people
who haven't been convicted are sitting in America's jails awaiting trial,
according to a nonprofit group called the Prison Policy Initiative,
that's seven out of every ten people in jail who
(01:50):
have yet to be convicted or sentenced. Note that jails
aren't the same as prisons. Jails are designed for shorter stays,
whether it's a short sentence or a pre trial detention.
According to a report by the Prison policy Initiative. The
total number of Americans incarcerated in both jails and prisons
is more than two point three million. The real crime
for criminal justice reform groups like this one is that
(02:13):
the cash bail system produces two very different outcomes depending
on how much money the defendant can scrape together. A
person arrested for felony assault who poses a potential safety
risk to the community could walk free if they make bail.
A person arrested for misdemeanor shoplifting could sit in jail
for weeks because they can't come up with a few
hundred bucks for bail. We spoke with Rachel Soddle log Vin,
(02:33):
vice president of the Pre Trial Justice Institute. She said
money has now become the primary determining factor of whether
or not you're released. Her organization advocates for eliminating cash
bail entirely and maximizing release by moving to a risk
based system that assesses a defendant's threat to public safety
if released and his or her likelihood of appearing in court.
(02:54):
Bail reform isn't a new issue. Speaking at the nineteen
sixty four National Conference on Bail, Ail and Criminal Justice,
Attorney General Robert Kennedy concluded, what has been made clear
today in the last two days is that our present
attitudes toward bail are not only cruel, but really completely illogical.
What has been demonstrated here is that usually only one
factor determines whether a defendant stays in jail before he
(03:17):
comes to trial. That factor is not guilt or innocence.
It's not the nature of the crime, it's not the
character of the defendant. The factor is simply money. How
much money does the defendant have. But despite being on
reformer's radar for more than fifty years, only recently has
city and state governments begun to really do something about bail.
(03:38):
New Jersey passed bail reform and launched its new assessment
based system in January of The Maryland Supreme Court ruled
in February of seventeen that defendants can't be held in
jail pre trial simply because they can't afford bail, and
bills have been introduced in states like California, Connecticut, and
New York to reduce the reliance on cash bail for
pre trial release. The bill a bond industry has been
(04:01):
lobbying hard against changes to the cash bail system which
it insists is still the best way to ensure that
defendants won't skip out on their court date. Jeff Clayton
is executive director of the American Bail Coalition. He takes
issue with a statistic that seven and ten people in
jail are awaiting trial and haven't been convicted or sentenced.
Clayton says that most detainees aren't there because they can't
(04:21):
pay bail, but because the judge has placed them on
other holds for violating probation or a pending charge in
another jurisdiction. Also, to say they haven't been convicted ignores
the fact that they may have a long history of
prior convictions. The real question about cash bail, he said,
is what would the alternative be and would it look
any better? For that, there's really only one place to look,
(04:43):
and that's the Pre Trial Services Agency or p s A,
headquartered in Washington, d C. The p s A, and
independent federal agency with a forty five year track record,
is widely regarded as the gold standard of pre trial
criminal justice reform. While cash bail is still legal in
d C and used in rare cases, the p s
A releases eighty percent of defendants on their own recognizance,
(05:05):
meaning nothing but a pledge to return for trial even
without bail. The p s A has seen nine of
release defendants appear at all of their scheduled court dates
and remain arrest free between pre trial release and their
trial date. How does it work? The p s A
uses a risk assessment tool that calculates each defendant's real
threat as a safety or flight risk, using metrics like
(05:27):
the defendant's current charges, criminal history, age, and other attributes,
race not among them. Based on this assessment, the system
recommends the least restrictive non financial release conditions. Next, a
team of p s A case workers sits down with
each defendant, particularly the higher risk individuals, to lower their
barriers to success. There's on site drug testing and an
(05:48):
in house drug treatment facility. Defendants with mental health issues
are referred to community counseling partners. The p s A
can provide help with employment and housing to help disrupt
cycles of poverty and crime. If a defendant skips on
a court date, the judge doesn't automatically issue a bench
warrant for his or her arrest, the p s A
case workers conduct a failure to appear investigation, which includes
(06:09):
phone calls to the defendant, to the defendant's family, to
other jurisdictions, and even to hospitals if the defendant has
known health issues. All of this costs money. The p
s A has three hundred and fifty full time employees
sur case workers, with an annual budget of sixty five
million dollars. Clayton of the American Bail Coalition said supervision
and all these alternatives are hugely expensive, and noted that
(06:32):
New Jersey's new system, which follows the p s A
model closely, may cost in the hundreds of millions of
dollars to operate. Leslie Cooper, director of the p s A,
says that the agency's core tenants, risk assessment and release
conditions tailored to that risk, are scalable and replicable anywhere,
and can be customized to fit a jurisdictions budget. What's
harder is the culture shift that needs to happen from within.
(06:55):
Cooper said. If a jurisdictions culture of criminal justice has
developed around the use of money bond as a system,
particularly money bonds that are secured by a third party
bail bondsman, it's a huge cultural change to tell people
that your system can be equally, if not more effective,
when you take away money. Nothing sells the case better
than being able to say it works and we have
the numbers to prove it. The bail industry and criminal
(07:17):
justice performers rarely see eye to eye, but Clayton of
the American Bail Coalition agrees that diverting some detainees to
drug and mental health treatment is the way to go.
He said, people with mental health and drug issues and
all these problems, nobody's going to post bond for them.
Doesn't mean that we need to keep these people in jail. No.
(07:40):
Today's episode was written by Dave Ruse and produced by
Tyler Klang. For more on this and lots of other
judicial topics, visit our home planet, how Stuff Works dot com.
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