The Philip DeFranco Show - MS 3.21 The Shocking Truth About America’s Bail System

Episode Date: March 21, 2019

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Hello, hello, hello. Welcome to your morning news show. I am Philip DeFranco, and today we're going to be talking about one of the most controversial aspects of the criminal justice system, bail. If you're not in trouble with the law, it's probably something you only think about during celebrity crime stories. The Biebs is out on bail. The total bond would be $2,500. The latest now in Jussie Smollett, he's free on $100,000 bail after being charged for staging his own attack. R&B singer R. Kelly has just been granted bail with

Conditions actress Lori Loughlin arriving home tonight after posting a million dollars bond Accused in a bribery scandal to get her daughters into USC and actually thanks to these cases Most of us have a pretty good understanding of how the money bail system works You get charged with a crime the judge sets a cash bail amount depending on the severity of the crime and you don't get that money back unless you return for all of your court dates. But if you're not a celebrity or at the very least you don't have thousands of dollars lying around there is a good chance you cannot afford the cost of bail in many states. So that leaves you with three options. You can agree to a plea deal, you can stay in jail while you await your trial, or three, you can pay a bail bondsman a non-refundable percentage of bail who is then on the hook for the full bail amount if you have failed to appear in court.

And while this system may seem commonplace for those of us who live in the United States, the American bail system is actually unique. And that's because the United States is one of only two countries in the world that has a for-profit bail system, with the other being the Philippines. And it's a system that has come under fire in recent years

by criminal justice reform advocates who argue that money bail unfairly punishes low-income and minority defendants, coerces guilty pleas, and leads to big costs for taxpayers. And largely because of all of this criticism, California recently became the first state in the nation to completely abolish its cash bail system. Or at least that was supposed to happen

until the bail industry fought back. So to fully understand what is actually happening here, we had Cody Snell from the Rogue Rocket team just jump into it. It was probably the most terrifying moment of my life. It was Martin Luther King Jr. Day, 2004. Amber Rose Howard had recently turned 18, had just gotten her permanent driver's license, and had the day off from school. Like any normal teenager with newfound freedom, she decided to take a drive through the streets

of Pomona, California with a friend. As they drove around the area, they stopped at a store. And while Howard waited in the car, her friend robbed the store. When he robbed the store, I was in the car as the getaway driver. And so we pulled up about 100 feet away from the store where the incident had happened. And I pulled over. I pulled the car over before I even saw any police because I was terrified. But next thing you know, there's almost 10 cop cars around. There's a helicopter in the sky. There's dogs everywhere. And we were arrested right there on the spot. Howard was eventually charged with robbery and sat behind bars for two weeks until her family could gather enough money to pay a bail bonds agent 10% of her $50,000 bail. But for many who are waiting in local jail cells, there's no family coming to

bail them out. And it's one of the main reasons the United States has the highest incarceration rate in the world. Of the more than 700,000 people in local jails across the country, 65% of them have not been convicted of a crime. And for many, there's only one reason they're sitting behind bars. They can't afford bail. Nowhere is this more apparent than California, where the median bail amount is $50,000, five times higher than the rest of the country. That's why last summer,

former California Governor Jerry Brown signed Senate Bill 10 into law that was supposed to dismantle the state's money bail system. State Senate Majority Leader Bob Hertzberg, who authored the legislation, told us why ending money bail was such a priority for him. Everybody talks about bail being public safety. It has nothing to do with public safety. It has to do with how much money you have. And what we found was that 63% of the people sitting in jail in downtown Los Angeles are there as what's called pretrial detainees. Maybe they're not a flight risk at all. Why are we spending all those tax dollars doing that? Why are we turning their lives upside down when there may be no risk and they'll show up in court? In replacement of a money bail system, SB10 instead relies on algorithms and the discretion

of judges to determine who should be detained before their trial. So let's look at an example to show how SB10 works. Say you're arrested for shoplifting, which is a misdemeanor. You're booked in the local county jail, and the police take a look at your criminal history. If everything comes up clear, you have to be released within 12 hours. But if something comes up that falls under 10 types of exceptions, it gets a little messy. These exceptions include everything from having a violent felony conviction within the last five years, to failing to appear in court three times within the past 12 months.

If one or more of these exceptions comes up on your record, you go through what's called a pre-trial assessment services, or PAS investigation, within 24 hours of being booked. If you're charged with a felony crime, you automatically go through this PAS investigation, within 24 hours of being booked. If you're charged with a felony crime, you automatically go through this PAS investigation. PAS investigations rely on a scoring tool that looks at various factors meant to determine whether you're a danger to the public or likely to miss a future court appearance. Once that score is tabulated, the PAS agency designates you as low-risk, medium-risk, or high-risk. If you're high-risk, you're automatically held in preventative detention until your arraignment. If you're high risk, you're automatically held in preventative

detention until your arraignment. If you're medium risk, you can be released as long as the court can reasonably ensure that you're not a threat to the public and will return for your arraignment. If you're low risk, you will almost always be released before your next court date. Now, despite the PAS system, a judge still has final say on whether or not you can be released and can also determine the conditions of your release, such as whether you will have to wear an ankle monitor or report to the court on a regular basis. But with such a dramatic departure from the current bail system, SB10, which was supposed to go into effect in October of this year, has faced fierce criticism. Starting with the bail bonds industry, which spent more than $3 million to gather enough signatures to delay the new law

and force a referendum vote on SB10 for the 2020 election. Jeff Clayton, the executive director of the American Bail Coalition, explained why the industry has fought so hard to defeat this law. Well, there would be no bail bondsmen left in California in pretty short order. Clayton argues that SB10 will destroy the bail industry, killing more than 8,000 jobs in California by some estimates, and also says that the law tramples on the constitutional rights that the bail industry provides. It's an insult to eliminate the right to bail. And it's one thing to say, you know, maybe there shouldn't be as much profit or, you know, there shouldn't be as much money used,

but to say that there should be no right at all we think is problematic. SB10 opposition campaigns have even featured people like Dwayne Chapman, better known as Dog the Bounty Hunter. Right now in California, bail bonds havemen capture over 97% of the fugitives that they post bail on tax-free. If you eliminate bail bondsmen in the state of California, this will cost you money. But Hertzberg says these claims are disingenuous. Look, these guys who are in the bail industry don't care about your constitutional rights.

They're making a living. I get it. I'm not offended by it. And I get the fact that we're putting them out of business. And I'm sure the people at Kodak were upset when those cameras came in, or that Photomat was upset, or Blockbuster was upset when Netflix came in. The world changes. The bail industry is not the only group that has passionately fought this law.

Many criminal justice reform organizers argue that SB10 replaces one bad system with another one because of its reliance on risk assessment tools to determine a person's flight risk and danger to the public. Organizers like Yvette Allais, a statewide coordinator for California's United for a Responsible Budget, or CURB, a nonprofit that works to reduce the number of incarcerated people. So risk assessment tools are algorithms. So they're a fancy formula that looks at data

like a person's arrest record, their age, their gender, and even their zip code to calculate their risk, much like a credit score. And the problem with risk assessments is that a lot of this data, it's proxies for race. During the last few decades, black and brown communities here in Los Angeles and in other parts of the country have been targeted by policing practices that are racially biased. If they are from a neighborhood that has been suffering from high policing practices, they're going to have a specific type of arrest record versus someone that lives in a neighborhood that is not over-policed.

Howard, who also works for Curb, said that if SB10 had been in place when she was arrested, she probably wouldn't have been released, despite the fact she was a straight-A student and had no previous criminal record. So thinking of someone like me back in 2004, if this had been in place, I'm a Black girl from Pomona High, which is a poor community, a poor school district, right? And then my charge was robbery. So just with that on the algorithm, it says lock her away. She's dangerous. Howard also says that having her freedom during the legal process drastically changed the outcome of her case.

The first thing that I remember my attorney telling me is that we got to get you out because we can't let the judge see you in that orange jumpsuit. So when you're fighting your case from inside and you go in and the judge sees you in that orange jumpsuit, there's kind of already a guilty tag on you. You don't look like a citizen, you look like a prisoner. I was able to go back to high school while fighting the case. I was able to graduate and walk with my class. I was able to continue to talk to mentors and folks who wanted to be involved to help. So I had from my kindergarten teacher all the way up through my high school teacher, writing in letters to the judge, showing up in court every time I had a court date. She also says being free allowed her to show the judge she was serious about rehabilitation. Howard was able to attend college during the court proceedings and eventually agreed to a plea deal.

She only had to serve a sentence of a single summer between her freshman and sophomore years of college, rather than the six years of prison she was originally facing. And Howard's case is representative of a much larger problem. Studies have shown that defendants who are never released pretrial receive two to three times longer sentences than those who are released at some point while their case goes through the system. This is why civil liberty advocates are worried that a flawed algorithm could end up increasing jail populations. But Hertzberg says that while he understands the concerns about bias, he has put safeguards in place like an oversight board to ensure it's a fair system. What we did was we created a statewide standard for determining what the tool should be.

And on that board of the five people that are supported by the chief justice, one has to be an expert in bias. He also says he's introduced another bill called SB36 that requires every county in California to maintain all the data that is being put into the algorithm so that it can be studied to reduce the risk of bias. And points to examples such as Washington, D.C. and New Jersey, which have restricted the use of cash bail in favor of algorithms. Every indicator of criminal justice and public safety were improved every place this has been utilized. And what we've done is made it even better by not charging people.

This is not something we've never done before. The impacts are cost less, less recidivism rates, less adverse impact upon each person who's arrested. Much smarter, smarter, smarter justice. Despite Hertzberg's reassurances, many bail reform advocates say that any algorithmic system is fundamentally flawed, and that there are better ways to ensure that people show up to court. What we learned at the Bail Project and what we learned in our 10-year pilot project in the Bronx was that people will come back to court if they have effective notification systems

in place where people can be notified of their next court date. Robin Steinberg, the CEO of The Bail Project, a nonprofit that pays bail for those who can't afford it, says that court communication needs to adapt to the modern world. Court systems tend to send out letters in snail mail to people about their next court dates. Lots and lots of people have housing instability. Lots of those letters never get to people.

In fact, one study commissioned by the New York City mayor's office did two simple things to improve court appearance rates in the city between 2016 and 2017. The study's authors redesigned the criminal summons form so that the date of the court appearance was at the top of the page rather than the bottom. And they set up an automated text messaging system that sent out reminders three times in the week leading up to their court date.

The result was a 36% decline in failure to appear rates over the course of seven months. But while text messages may address the appearance aspect of bail, there is still the issue of public safety, an issue that Aule says can be addressed in other ways. Anyone that is charged has not had their day in court and should be treated with a presumption of innocence. But if they're posing a specific threat to a specific person, like in the case of domestic violence, there are ways to remove that person from the home or from the area without having to cage them and restrict their freedom. I, in fact, came from a family where my father was held because of domestic

violence charges. And the impact of that was that my family didn't have our primary breadwinner. So for us, our safety was not just about removing my dad from our home, but actually having access to the economic stability that he provided. Ale says that instead, she would like to see courts work with community-based organizations that, for example, could provide separate housing for someone accused of domestic violence. Ultimately, whether or not SB10 will drastically change California's criminal justice system will have to wait until 2020,

when voters will decide if the money bail system is here to stay or is a relic of the past. So now that you've heard about the fierce debate over California's bail system, we really wanna hear from you. Do you believe that the money bail system as it currently stands is unfair? If so, do you think algorithms are a fair replacement?

Or maybe do you think that there's too much bias in the criminal justice system already for an algorithm to ever be fair? Any and all thoughts you have on this topic, I'd love to hear in those comments down below. And that is where this video ends, and of course, if you like this video, you like the way that we dive into news,

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