The David Knight Show - INTERVIEW Why Bail is an Important Part of Due Process

Episode Date: October 17, 2023

J6ers languishing in jail for years before trial is not an isolated incident as bail has disappeared.Catch & release, no bail policies are destroying big cities especially in California.Jeffrey Clayton, American Bail Coalition, on how bail works and why it's necessary, why it was attacked.Find out more about the show and where you can watch it at TheDavidKnightShow.comIf you would like to support the show and our family please consider subscribing monthly here: SubscribeStar https://www.subscribestar.com/the-david-knight-showOr you can send a donation throughMail: David Knight POB 994 Kodak, TN 37764Zelle: @[e-mail] App at: $davidknightshowBTC to: bc1qkuec29hkuye4xse9unh7nptvu3y9qmv24vanh7For 10% off Gerald Celente's prescient Trends Journal, go to TrendsJournal.com and enter the code KNIGHTBecome a supporter of this podcast: https://www.spreaker.com/podcast/the-david-knight-show--2653468/support.

well joining us now is jeffrey j clayton he is the executive director of the american american bail coalition and i wanted to talk to him about what is happening in all over the country as part of what we see happening with these prosecutors are turning criminals back out on the street catch and release uh what triggered this uh in particular this has been going on for a while it's been going on for several years but in la they recently came up with a zero bail release policy and 12 cities in la county have sued and so we want to talk about that lawsuit but we also want to talk about the broader issues involved with bail, why that has been a long-term part of our government and our criminal justice system, and the importance of it

and the misconceptions about it. So joining us now is Jeffrey J. Clayton, Executive Director of the American Bail Coalition. Thank you for joining us, sir. Thanks for having me on. Let's talk first of all about what is happening with this lawsuit, the issue right in front of us. And then I want to get into, you know, as I said, what is the misconceptions about bail? What is it good for and the importance of it? But tell us a little bit about that lawsuit first. Absolutely. And really, it's sort of a combination of two lawsuits there's an activist uh legal group called

the civil rights corps that's been suing small cities throughout the united states for now going on seven years over their bail systems uh and their final stop is los angeles we've been uh opposing that along with a variety of cities from around the country uh and have won a couple of those cases we can talk about those later in other courts of appeals. So what happened here was that particular group sued the judges in Los Angeles and alleged that the bail schedule was unconstitutional. And what happened was neither the city, the sheriff, or the attorney general, who was named as a defendant in the case, defended the case. And so the activist group won that the bail schedule was unconstitutional and arguments, frankly, that I think, you know, maybe some defense could have been put on. But because none was put on, the judge decided to go to the zero bail schedule, which Los Angeles adopted during the pandemic pending the outcome of the case.

So these judges got together and said, well, we've got to do something. So they set a new sort of interim process of a bail schedule that we think will be in effect for a while until we figure out what the next stop is going to be. But in the meantime, it means you know, things like, you know, shoplifting, some driving under influence crimes and other crimes that now have bales are going to have zero bales automatically, which is another important problem there is that they're not going to be seeing judges as the default, right,

the default before was bail. And then they could see a judge. Now it's just going to be zero. They're going to be released and not see a judge. So it's not like they're kicking them to a judge to have it evaluated at that point. So that's where we stand. And so we're going to see, you know, the impact of this zero bail schedule when it's enforced, not during a pandemic. And when, you know, you're seeing crime increase. And we've seen the result of this when we look at the massive looting that is shut.

Even, you know, big box retailers from Wall Street can't survive with the kind of looting that we have seen going on. And that's being facilitated by just this catch and release. You know, you don't have to pay bail. You don't have to see a judge. You just immediately release the people. If there's no penalty for organized theft, this is going to continue to escalate. Let me ask you, you said that they went back to, you know, they had a zero bail policy

as part of the COVID lockdowns and things like that. This other policy, though, that they said was unconstitutional. How long had that been in effect prior to the change with the pandemic? Well, the bail schedule statute in California dates to the early 90s, I believe, and requires a bail schedule and has various rules on when the judges can go up and down. With the whole idea that we have a uniform bail schedule, right? If we treat people equally is the reason that we have a bail schedule. now we're saying oh it's unconstitutional because people can't afford it well that's really not why it was created it was created to very much avoid that problem but the big problem now is you know what what are we going to do with all these people on zero bail when they

continue to re-offend and they know those loopholes in the system they're going to exploit it and that's what we've seen in other places where we make the rules beforehand uh rather than leaving it up to judges yeah i know having a bail set yeah the leader of the of the conservative party in canada was questioned about that and he said uh you've got to be kidding you they said well how can you prove that uh people um on uh being released early without bail is has anything to do and he goes yeah we've had situations where people come out and they would be caught, released, and then go back and commit another crime, be caught and released, and do that several times a day. And he said, and it's a very small group of people that just keep, you know,

repeating offenses like this. And the person says, yeah, but can you prove it? And he goes, are you serious? Were you listening to what I had to say? I mean, this is the insanity of this. Now, you point out this exact bail schedule goes back to the 90s. But, of course, bail has been around. It's nothing new.

It's been around since the creation of our form of government. It's always been with us, right? Tell us a little bit about the purpose of bail and a little bit about the history of it. I mean, the right to bail dates to pre-magnacarta there's a lot of english history that i'm not going to get into the five knights case lord coke all that sort of thing but the essence of it was that the government could not imprison you that we you had to submit security for your appearance and really in this country it was the right to bail by sufficient sureties, which was the original sort of Pennsylvania, Massachusetts Constitution. And really what it means is a third party putting up a financial guarantee.

As part of the common law, what that meant was you had arrest powers and you could go across state lines. The Supreme Court, I believe in the 19th century, called it the option to select the jailer of one's choosing. And I believe the Supreme Court also said the bail industry is a friend to the friendless in a way when you need a friend and you don't have one. And so obviously there was a divergence in the late 19th, actually early 20th century when the English Supreme Court said it was against public policy to have compensated sureties, in other words, bail agents that take a fee to act as your personal surety, whereas Justice Oliver Wendell Holmes, of course, said, no, you can do that and states can regulate that. And so 46 states have said that you could have commercial sureties in the United

States. And so really it is an ancient form of our due process. it's been around for centuries and uh and so what is new is the idea that we don't have any bail and um and again the uh what is the if you don't have a situation where you have as you point out do you choose your own jailer uh which uh says that you're going to be back for the trial and they're going to keep an eye on you that type of thing what we see is is what is happening in LA and in San Francisco and the rest of these people it is it is total anarchy isn't it yeah it's and money bill and then what really there's only two options we go to the federal system of detaining three out of four defendants using what I would consider to be an arbitrary power that we really didn't have or we we say you get a zero bail and we just release people that are completely dangerous. And so in California,

for example, the measure of staying in jail, and this is how bail protects public safety, so to speak, is the measure of getting in or out of jail is putting up the security. If you don't put up the security, you stay in jail, which means the rate of new crime is zero. So that protects public safety. That's what people aren't taking into account here. And that's their whole argument is we don't think those people should stay in jail because they can't afford it. Well, in reality, they can't find somebody in the community to put up for them to make the guarantee. That's what we're talking about. And we say in our tradition, well, then we should not release them because they're not going to come answer for the crime. And so that so that's, that's the distinction.

And those people that stay in jail have a zero new crime rate, other than the crimes they commit in jail. And that should be factored into all of this. And unfortunately it's generally not. We just say, well, you put them on bail. They still commit new crimes. That's true. But when they don't, uh, when they stay in jail pending a trial,

they don't commit new crimes. Now at your website, uh, there, the American Bail Coalition, you address some of the facts and myths about bail. And the first one that you address is kind of what you just tangentially touched on there. The people, poor people are languishing in jail for the sole reason that they cannot afford a bail bond. And so what would you say in terms of that? And you have a couple of points that you point out, but tell the audience why that is. It's not about poor people languishing in jail. Well, judges are tasked under state and federal law with adjusting the bails based on people's incomes. And that's what's supposed to happen. I think what we've seen and what has been a problem

and where the other side has a point, so I'll address their argument, is that we've had bad due process in this country when it comes to bail. In other words, you put in jail, you cannot afford it, and you're there really because the bail was set too high arbitrarily by a bail schedule and it needs to be adjusted. And then you sit there for a week. In some cases we've seen in some jurisdictions, people sat there for 30 days to see a judge to have a bail adjusted. Now that becomes a problem, but that's a problem of due process. And I think that has been improved. But generally what we see is that people who are stuck in jail have multiple reasons for that. And it's usually repeat crimes where the judges have set the bails. They've burned all their friends and ties to the community. In other words, nobody

believes that they're going to show up. nobody believes that they're going to show up. Nobody believes that they're going to show up to sentencing. Nobody believes that they're going to go to prison if they get sentenced, and so they're not willing to put up with them. And so that's generally where we see that. But I do agree that some of these lower-level charges that we've seen, sleeping on the park benches and stuff, we had a lot of arbitrariness in the system that needed to be fixed.

But on the top end, felons, repeat felons, I mean, these people are multiple-time violent criminals. The average person who doesn't post bail in this country has 10 prior strikes or more prior felony convictions, prior misdemeanor convictions, prior failures to show up in court. So we rarely see a first-timer that can't afford bail that's stuck in jail. And so in a sense, what it is, is a, a risk assessment on this person not showing up or committing more crimes while they're out. That's one of the things that drives the amount of the bond. And as you pointed out, it, it, it should be adjusted also for their income, but it's a, it's kind of a thing that, you know, says this is the seriousness of the crime and the risk of letting this person out. And, and so if that is judged by the judge and by the people who might produce the bail as being too much of a risk, that person stays in jail.

That's essentially what's going on with it, isn't it? That is. And really, it's not a scientific or calculated. There's not a calculator to do this, right? You're taking in the interests of the people who are prosecuting the victim of the crime under Marcy's law in the state of California and other states has a right to be heard on bail of what they think the bail should be. So the judges have to balance all these factors. Like you said, the crime, the prior record of failing to appear, you know, all these various factors ties to the community, whether they're employed, you know, whether they live in another state, all this sort of thing, all goes into the calculus under various state statutes. So you're right.

And that is not a precise balance. And some people are uncomfortable with that. But that's the process that we have in this and many other parts of our criminal law. Yes, yes. Now, you're with the American Bail Coalition. And it is the bail industry. And as part of your facts and myths here, you say, well, one of the things that has been said about this is that the bail industry is completely unregulated and takes advantage of consumers. Give your side of the story. Well, we're regulated by departments of

insurance. We're required to be regulated as insurance companies by the Comprehensive Crime Control Act. And so we're regulated heavily in all the states that we do business. There's been lawsuits over consumer protection laws being applied, and I would just say they're continuing to be applied in various states. And so I think the laws are enforced on bail agents. The other thing that I've been working on over the last seven or eight years in this role is regulating bail recovery agents. And there are still some states like my home state of Colorado where you could just announce that you're a bail recovery agent, which means you're being transferred arrest powers and you have no regulatory oversight by the state.

So our policy has been if you have arrest powers, you should probably be regulated by somebody. And, you know, we think the state departments of insurance, but other states do it differently and use sort of the same bodies that regulate police officers' arrest powers to impose some training and other requirements. But overall, by and large, you know, we're regulated fairly heavily other than what I would say, that little area that we're trying to improve. And of course, arrest powers, because if this person skips, they've got to be able to uh arrest this person and uh and bring them back to me it seems like a very ancient perspective of you know things like putting like marks of retainer on on you know uh deputizing people to go get something done

because people understood that that might be a more efficient way to do it rather than have a large bureaucracy is to uh farm out some of these things. One of the things that the bail industry is accused of and the whole bail process is accused of, of course, this is an accusation that is thrown against everybody at one point at a time. If they don't like what you're doing, they call you racist. So this is the accusation of racism. Talk about that a little bit. Well, at least from my perspective, from the corporations of insurance that underwrite bail, we cut through all that. We allow people in whatever communities that want to become bail

agents and service personal assurities to be able to do that. And I think without that level of national underwriting, it would make it harder for there to be people to come into the bail industry other than, you know, longtime property owners in those communities. Two is largely the system, and I'm not going to get into the reasons why, has disparities in it. If you just look at the raw numbers in terms of population versus the amount of criminal justice involved, you know, individuals that are minorities. And so we serve those communities. We allow them to get out of jail as appropriate, secure their release, and go through the process. And that's an important thing, as we know, for various reasons.

You know, they put on a better defense. They get their act together in terms of probation and trying to argue for a better sentence. I mean, generally, just things tend to work better if they're able to secure their release and get out. Yes, Yes. Let's talk a little bit about how this has started to come about. And this is something that has, um, uh, been, um, changing over the last several years. Um, Chris Christie, uh, did one of the first movements of this when he was governor in New Jersey, he worked with Democrats to essentially, did he completely remove bail at that point in time? But that was one of the first places where we saw this, wasn't it, in New Jersey? It really was. And that was kind of his pivot to the federal

system. So to go kind of a little bit back in time is that there was bail in the federal system until the Bail Reform Act of 1984, when we came up with a new idea which is we'll just lock up the people that we label dangerous and we'll let everybody else out and supervise them using federal pretrial services and the U.S. marshal service to arrest them that was the federal model largely thought unconstitutional because we had this right to bail but the U.S. Supreme Court decided otherwise and so that was the movement in New Jersey I would think of it more as a hybrid system where we wanted to lock up more and deny bail the more people say you're just too dangerous miss to get any bail and that we were gonna not require bail on some of these

people and give more summonses to some of these people on the lower end and we'd still have like a shrinking middle of bail in the middle but as the system was implemented I think the Chief Justice really just wanted to get rid of bail. And so you really have seen it largely eliminated. And we go to this system of just, you're detained, and you're there at the will in jail period pending some trial, I would know certainty of when that's going to be or you get released on your own recognizance. And in the case of New Jersey, there's very little oversight and supervision when that happens. And so you see crazy results under that. And you see an expansion of the government wanting to detain because judges can't do bail. And so you see a lot of that. And

you've seen a percentage of motions filing for detention increasing. And so it's really a question of whether that's a system of long-term term is that better you know for the half billion dollars you know they've spent on it we don't think so uh we think you could have just done summonses and kind of targeted these repeat offenders without having to spend all this money so i'm not sure it's really a better system but that's kind of where the public policy debate lies right now is to end cash bail and then what right what do we do then? And none of the alternatives really seem to be much better than the constitutional framework we've been working in, you know, for 400 years. Yeah. And just keep people in jail longer, have more overcrowded

prisons. And of course, the whole idea, you talk a great deal on your website about reform for a speedy trial. I think a lot of people who watch this program are looking at this and thinking about the J6 people, you know, the January Sixers. Very few of them in jail for any accusation of a violent crime, for example, and yet not given a speedy trial under, you know, difficult conditions and awaiting trial for a couple of years,

two or three years, many of these people. Talk a little bit about the speedy trial aspect of this. Well, you just made the argument for overturning US v. Salerno, which is since 1984. In 1984, if January 6th would have happened, one, there would have been bail. So they would have had a 76% chance of getting out, not a 76% chance of staying in. So we flip-fl flip flop that since 1984. The other thing that's been unbelievable that a report called Freedom Denied from the University of Chicago pointed out recently is that the speeding trial time when there was bail in the

federal system was 60 days, was the average felony. That's up to 360 days now. And so what's happened is, and as Justice Thurgood Marshall predicted, when we take a shortcut to a conviction, there's no pressure to do anything. And that's what we've done. If the prosecution knows you're in jail, then every incentive to go as slow as possible and delay everything because they've got you and they know you're incarcerated, you're not going to commit a new crime. They've done their job. And so that's what we've seen over time. And that has had a devastating impact on civil rights and also unnecessary pretrial incarceration. If we can try them in 1984 and 60 days, with all this newfangled technology, exchange of electronic discovery, all this stuff that we say should

improve it, why has it gotten so long? And really, it's just lack of incentive. If the prosecutor knew that the bail industry could come bail out 50% of them, they'd be in a hurry to convict them. So we're seeing that around the country as that, you know, in South Carolina, for example, the average felony cases two years, you know, and obviously, the bail issue becomes a lot bigger when you're gonna be sitting there for two years. And so speedy trial is the number one way to reduce unnecessary pretrial incarceration.

The other example I'll give is Michigan. 18% of defendants, pretrial costs, 82% of jail costs. And those are people that stay 30 days and longer. So you can do all the bail reform you want, but if you're not hitting the 82%, what are you really doing? And if you could cut that amount of time in half, you would cut the amount that they have to sit in jail pending this outcome in half. We'd get them on the probation, get them on the treatment or get them in prison where

they belong. We have to get to this fork in the road. And the more that we, you know, don't focus on speedy trial and allow this to happen, we just take a shortcut to conviction. And then everybody's arguing, oh, we need preventative detention. We need to lock more people up. Yeah, because we never get there and we need to get there. That's what this is all about. And that is what deters crime. Certainty of getting caught, swiftness of punishment. And that's basic and that

goes back 300 years. And that's what we need to focus on. And so the two extremes that we've got, and we don't like either one of those, you either just immediately release these shoplifters, these shoplifter gangs who just turn them right back out. Or you lock people up for, instead of a couple of months, you lock them up for a year or maybe two years. Or as we saw in the case of the J6ers, lock them up for three years. Not accused of a violent crime. And I'm just curious, maybe you know, maybe you don't know,

what was the argument for keeping these people locked up for that long a time? Was it that they could not get to a, would not give them, why would they not give them bail do they just not have that in the district of columbia or were they saying they were too dangerous even though they were non-violent well do you know what the justification was for keeping those people locked up for three years in general there was a statutory presumption that they stay in jail just under the federal statute because of the level of the crime and the defendant has to rebut that presumption that That's how heavy it is. You know,

you've got three out of four defendants in any federal criminal case stay in. So it didn't surprise me at all that people charged with insurrection related crimes like this, even if they had no background, would face detention. And that's wrong. And here's the reality. You know, the reason there is bail is to challenge arbitrary preventative detention. The community can say, enough, you've gone too far, we're bailing these people out. Now, that doesn't exonerate them, but it sends a message to the government that you've gone too far. And that's why that extreme, I think, is bad. The other extreme is just as arbitrary, is that we say, well, basic shoplifting, okay, then that's fine. Well, what if it is the

15th time? What if it is special circumstances where they use the gun or there's something that the statute didn't anticipate that we want judges to do. So it becomes arbitrary go in the both both ways. And that's why this history of bail and securing your release has been kind of the best way to draw this balance and let judges unfortunately, people say, you know, we need you to use judicial discretion discretion and everybody

loves that until they lose but that's that's the best system that we have and we and you know either side that just ends up being too arbitrary i think give us an idea of where this issue is now uh you know we saw this uh several years ago in new jersey and of course it's made the democrat station california illinois connecticut other things like that. What is the general situation? Is this something that is rapidly spreading, or is this something that is rapidly spreading in the heavily Democratic states? Well, I would say that what happened in New York, the three-time rollback by two governors of the original law, has really sort of stalled out this idea that this

is some successful solution uh i think we are seeing it in two places remaining which is sort of los angeles and um and what just happened in illinois with the illinois supreme court affirming the safety act which is basically a smaller version of new jersey in other words we take new jersey and we say the list of crimes are going to be a lot smaller than what we have in New Jersey. So I think there's been some conversations in other states about going more to detention policies, but not necessarily as a reason to make it more fair, but to crack down on repeat criminals. So we've seen that in places like South Carolina, Tennessee, and other particularly states in the South, like Florida, that are seeking to crack down more on repeat defendants.

Mm-hmm. So as you look at this, how would you say the momentum is? Is the momentum swinging back in your favor then? I'd say so. I think the idea that we can just wholesale allow a bunch of people to get out of jail free card is going to be good public policy is sort of like, you know, saying defund the police was going to work. I mean, I just violated the basic common sense doctrine. And basically, it violated the whole doctrine of what I was saying of criminal deterrence, we can't prosecute and incarcerate everybody, we have to send the message that you are going to and convince people that we are going to get them if they commit crimes.

And as soon as we lose that and we have said, well, you don't have to respect the police, well, then look where we are. So that's the policies we need to go. And bail is part and parcel of that, which is you could have bail set. You could stay in jail. We just won't know until you get there. And that's the message that we need to have. I think it is swinging towards your direction because people have seen what is happening in California. It is absolute total anarchy. And, you know, well, these people are nonviolent, so let's just let them go. People realize, are starting to realize now exactly how unworkable this is. So I think it's very important. I think it's one of the fundamental things in terms of due process. You know, we have these things that are there, things like trial by jury,

habeas corpus, bail. These are tried and true. They were there for a reason, and it is very foolish to discard these things. And we do it and eventually discover why they were there. And now we can see in California why they were there all along. Thank you so much for joining us, sir. And again, it is the American Bail Coalition. And we have to, it's very important what is happening to our justice system and how it is being ripped down at the foundation. And I think this is just one more of the things that we need to reclaim and understand the true importance of it and why it is there. You know, don't tear down the fence if you don't understand why it was put up in the

first place. So thank you so much for joining us and explaining that. Thank you. You got it. It was a pleasure. Thank you. We're going to be right back, folks. Take a quick break, and we'll be right back. You're listening to The David Knight Show. © transcript Emily Beynon