March 28, 2021 • 8 mins
Cash bail punishes the poor by setting a high price on freedom -- literally. But are there any better alternatives? We explore in this classic episode of BrainStuff, based on this article: https://money.howstuffworks.com/cash-bail-punishes-poor-but-whats-alternative.htm
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Episode Transcript
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Speaker 1 (00:01):
Welcome to brain Stuff production of I Heart Radio. Hey
brain Stuff, I'm Lauren vogel Bomb and this is a
classic episode from our archives. Today's question has to do
with one of the many aspects of criminal justice reform
that's being discussed more seriously as of late. Is there
a better alternative to cash bail? Hey brain Stuff, Lauren
(00:25):
Vogel 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
cases bail means money. Cash bail is one of the
oldest ways of ensuring that the accused person shows up
(00:47):
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 andhly if
they show up to court. Today, most cash bails aren't
paid directly by the defendant, but by a third party.
Bail bonds agent, also known as a surety bondsman. That's
(01:10):
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 theeen bail schedule for Orange County, California, you'd
see that the bail for residential burglary is set at
fifty thou dollars. A bail bonds agent charges ten percent
of the full amount, nonrefundable for your release, and promises
(01:32):
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 may be too risky, and
others are 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,
(01:53):
for years. Currently, four hundred and forty three thousand people
who haven't been convicted are sitting in America's jails away trial,
according to a nonprofit group called the Prison Policy Initiative,
that's seven out of every ten people in jail who
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.
(02:16):
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
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
(02:38):
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 FN,
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
(03:00):
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.
Bail reform isn't a new issue. Speaking at the nineteen
sixty four National Conference on Bail and Criminal Justice, Attorney
General Robert Kennedy concluded, what has been made clear today
(03:21):
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
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
(03:43):
much money does the defendant have. But despite being on
reformer's radar for more than fifty years, only recently has
city and state government's begun to really do something about bail.
New Jersey passed bail reform and launched its new assessment
based system in January of seven teen. The Maryland Supreme
Court ruled in February of seventeen that defendants can't be
(04:04):
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 bail bond industry has been
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
(04:26):
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
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
(04:47):
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,
and that's the Pre Trial Services Agency or p s A,
headquartered in Washington, d C. The p s A an
independent federal agency with a forty five year track record
(05:09):
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,
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
(05:29):
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
the defendant's current charges, criminal history, age, and other attributes,
race not among them. Based on this assessment, the system
(05:50):
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
in house drug treatment facility. Defendants with mental health issues
are referred to community counseling partners. The p s A
(06:11):
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 phone
calls to the defendant, to the defendant's family, to other jurisdictions,
and even to hospitals if the defendant has known health issues.
(06:32):
All of this costs money. The p s A has
three hundred and fifty full time employees seventer 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 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,
(06:56):
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 jurisdiction's budget. What's harder is the culture shift
that needs to happen from within Cooper said, if a
jurisdictions culture of criminal justice has developed around the use
of money bond as a system, particularly money bonds that
(07:18):
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 justice performers rarely see eye
to eye, but Clayton of the American Bail Coalition agrees
(07:38):
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 Phay's episode was
originally produced by Tristan Meal and is based on the
(07:59):
article cash bail punishes poor, but What's the Alternative? On
how stuff works dot Com written by Dave Rooves. Brain
Stuff is production of I Heart Radio in partnership with
how stuff works dot Com and is produced by Tyler Clain.
For more podcasts from My Heart radio, visit the iHeart
Radio app, Apple podcasts, or wherever you listen to your
favorite shows.
Welcome to brain Stuff production of I Heart Radio. Hey
brain Stuff, I'm Lauren vogel Bomb and this is a
classic episode from our archives. Today's question has to do
with one of the many aspects of criminal justice reform
that's being discussed more seriously as of late. Is there
a better alternative to cash bail? Hey brain Stuff, Lauren
(00:25):
Vogel 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
cases bail means money. Cash bail is one of the
oldest ways of ensuring that the accused person shows up
(00:47):
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 andhly if
they show up to court. Today, most cash bails aren't
paid directly by the defendant, but by a third party.
Bail bonds agent, also known as a surety bondsman. That's
(01:10):
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 theeen bail schedule for Orange County, California, you'd
see that the bail for residential burglary is set at
fifty thou dollars. A bail bonds agent charges ten percent
of the full amount, nonrefundable for your release, and promises
(01:32):
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 may be too risky, and
others are 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,
(01:53):
for years. Currently, four hundred and forty three thousand people
who haven't been convicted are sitting in America's jails away trial,
according to a nonprofit group called the Prison Policy Initiative,
that's seven out of every ten people in jail who
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.
(02:16):
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
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
(02:38):
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 FN,
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
(03:00):
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.
Bail reform isn't a new issue. Speaking at the nineteen
sixty four National Conference on Bail and Criminal Justice, Attorney
General Robert Kennedy concluded, what has been made clear today
(03:21):
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
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
(03:43):
much money does the defendant have. But despite being on
reformer's radar for more than fifty years, only recently has
city and state government's begun to really do something about bail.
New Jersey passed bail reform and launched its new assessment
based system in January of seven teen. The Maryland Supreme
Court ruled in February of seventeen that defendants can't be
(04:04):
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 bail bond industry has been
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
(04:26):
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
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
(04:47):
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,
and that's the Pre Trial Services Agency or p s A,
headquartered in Washington, d C. The p s A an
independent federal agency with a forty five year track record
(05:09):
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,
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
(05:29):
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
the defendant's current charges, criminal history, age, and other attributes,
race not among them. Based on this assessment, the system
(05:50):
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
in house drug treatment facility. Defendants with mental health issues
are referred to community counseling partners. The p s A
(06:11):
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 phone
calls to the defendant, to the defendant's family, to other jurisdictions,
and even to hospitals if the defendant has known health issues.
(06:32):
All of this costs money. The p s A has
three hundred and fifty full time employees seventer 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 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,
(06:56):
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 jurisdiction's budget. What's harder is the culture shift
that needs to happen from within Cooper said, if a
jurisdictions culture of criminal justice has developed around the use
of money bond as a system, particularly money bonds that
(07:18):
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 justice performers rarely see eye
to eye, but Clayton of the American Bail Coalition agrees
(07:38):
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 Phay's episode was
originally produced by Tristan Meal and is based on the
(07:59):
article cash bail punishes poor, but What's the Alternative? On
how stuff works dot Com written by Dave Rooves. Brain
Stuff is production of I Heart Radio in partnership with
how stuff works dot Com and is produced by Tyler Clain.
For more podcasts from My Heart radio, visit the iHeart
Radio app, Apple podcasts, or wherever you listen to your
favorite shows.
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