Today, Explained - A world without bail?

Episode Date: June 23, 2020

With the wave of protests came waves of arrests and record-breaking donations to bail funds across the US, but reformers hope for a reckoning of one of the only for-profit bail systems in the world. Transcript at vox.com/todayexplained. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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In a lot of ways, the police are the front lines of the criminal justice system. Then it's the court system, and then there's the prison system. All of this together makes up the criminal justice system. And the people who've been calling for criminal justice reform since long before the death of George Floyd are hoping that the movement for change right now isn't limited to the police. One example is calls for bail reform. The United States is one of only two countries in the world with a for-profit bail system. It's us and the Philippines. For-profit, as in when you're arrested, you gotta post bail if you want to wait for your trial from home. If you don't have the money, you or someone who loves you a lot goes to a bail bondsman and signs over their house or

something valuable as collateral for a loan or you stay in jail. With all the arrests of protesters in the past few weeks, there's been a ton more attention than usual paid to the bail system in the United States. Take the Minnesota Freedom Fund as an example. It's a bail fund that helps poor people who don't have the money get out of jail after arrest. According to NPR, the organization had about $150,000 on hand in 2018. In the past few weeks, it has raised over $30 million from something like 900,000 individual donations. And that's just one bail fund. Millions of Americans have donated to these funds in the past few weeks. And in doing so, they're saying the system doesn't work.

It needs to change. Adam Foss has been trying to change the bail system in America for a while. I'm the executive director of an organization called Prosecutor Impact, and I'm currently in Los Angeles, California. He started out on the other side of this issue. I got into the criminal justice system as a law student. I spent a summer as a law clerk for a judge in a municipal court in Boston. And that's really where my firsthand experience with our justice system started. And I watched every single day as the issue of bail came up in people's lives and really didn't understand the impact that that decision

was making on people's lives. And that didn't really happen for me until I became a prosecutor and was asking on my first day of work for people to go to jail. I think about myself as a young lawyer thinking that I'm doing a good job doing this sort of perfunctory function of the criminal justice system that I literally learned on the job and think oftentimes back to those moments in court and not really knowing what happened to those people and their families and their lives and the safety of the community because of the decisions that I was making. The decisions he was making were largely influenced by a document drawn up in medieval England, believe it or not. You may have heard of it.

They call it the Magna Carta. So you're talking about a document from like 800 years ago. You needed collateral to make sure that people came to their quote-unquote court date. It was a vehicle to give the government or the monarchy the ability to know that you would show up when you were called to do so. And that is how bail started in the British colonies. And then obviously it followed folks who left Great Britain to come to the United States to build the colonies. They were just pulling bits and pieces of the old justice system to start the justice system here. And one of them was this concept of bail.

So how does bail look in 2020 compared to whenever the Magna Carta was signed like 800 years ago? Bail looks and operates in much the same fashion. I'm sure whatever was exchanged for collateral in the 13th century is no longer what is exchanged for collateral here. But the function is the same. I put something of value, I give it to the government or to the new institution that obviously we have that they did not have then, which was the concept of a bail bondsman.

If I don't come to court, the government and or the bail bondsman absorbs that collateral that I've given them and I'm now considered a fugitive or in the alternative, if I make all my court dates and my case resolves, I get that collateral back. And so you've worked inside this system. How exactly is the price of bail in the modern criminal justice system set? Bail is set typically twice. There is a person or persons in lots of communities called the bail commissioner, who is the person who usually comes in at the time that you are arrested and sets a bail.

And so if you're arrested overnight when the courts are not open in most communities across the United States, a person who is affiliated with the court will come and look at your paperwork and set an original bail. If you cannot make that bail, you'll be brought to court. And in the morning, you'll have a new bail hearing. And again, this is a very general overview of how bail works. It's different in lots of communities. That bail determination the next

day is made by two actors in the system, the prosecutor and the judge who ultimately sets the bail. The prosecutor is recommending a bail amount to the judge based on typically the charge or charges that the person is facing and then charges that they've had in the past and whether or not they've failed to appear in court before. The prosecutor will request the judge of an amount, and the judge will hear from the person who's been accused, their lawyer, and will make a decision about how much bail, if any, to set. And of course, what happens if you can't make bail? If you can't make bail, a judge sets a bail of $500. And for a lot of people, that is a month's worth of rent and necessities. And if they can't make bail for their loved one, their loved one then is taken into the custody of the state

and will stay in jail and pretrial detention every day until their case is resolved. In May of 2010, 16-year-old Khalif Browder was walking home from a party in the Bronx every day until their case is resolved. In May of 2010, 16-year-old Khalif Browder was walking home from a party in the Bronx when he was stopped by the police and arrested for robbery. They said, we're going to take you to the precinct, and most likely we're going to let you go home, and then I never went home. Khalif Browder, who was in Rikers for the alleged theft of a backpack, was there for almost three years. The evidence that they supposedly had on me, which was the dude saying that I robbed him, his statement, and I told him I didn't do this, I don't know how I'm here.

He said he's going to work on the case, but after a while I just gave up hope. For Khalif, someone who is very young, someone who was struggling with mental health in a place that is terrible for mental health, he was brutalized, he was victimized, he was held in solitary confinement for several months of that confinement. I spent three New Years in there, three, four of my birthdays.

I spent a lot of holidays in there. His case was ultimately dismissed. Shortly after he was released, he took his own life. Kalief Browder committed suicide, hanging himself out a window of his mother's home. His family is now suing the New York Department of Corrections. I want them to be responsible, to admit that it was their fault that my son is dead. He spent three years in hell. And so that is an outlier. People are held on pretrial detention on average in this country for 23 days. But when I say outlier, I don't want to make it sound like it's rare. People are held for months, sometimes years on pretrial detention. But we get lost in those stories of these really

like draconian lengths of time that people stay in because what we know is like three days can be really disruptive and damaging to the life of people who find themselves in the criminal justice system. How many Americans are in jail right now because they can't make bail? Do we know? On any given night, we estimate that there are around 700,000 people sitting in pretrial detention in jails around the country. And I guess we should make the distinction here that these aren't like 700,000 people who are broadly representative of the United States or even

people who interact with the criminal justice system. These are 700,000 of the poorest people who interact with the criminal justice system, right? Yeah, I think what is also important to recognize about those 700,000 people is that under our constitution, they're innocent. What is life like for these 700,000 Americans? I mean, what's going on in their lives while they can't post whatever it might be, a $500, $1,000 bail? What's going on in their lives is what's going on in everybody else's lives, except when you're living on the margins. Those things are much more unstable, much more acute, and you're sort of just living in a constant state of little fires. They're working hourly wage jobs and if they don't show up, they're replaced. If you are being held, you know, around the first or the 15th of the month and the rent is due, I might feel empowered as a young

person to reach out to my landlord and as I did often when I was that age, and say, hey, I'm going to be a little late on rent this month. But when you are living on the margins and you're living in public housing, you don't have that privilege. And so you could lose your home when you have bills that are due and your credit has already taken a hit because of the challenges that you have in your life. And those bills come due and you're in jail, where I might have, as a privileged person, just avoided the phone calls from the creditors and paid bills when I had the ability to do so. Folks who, again, are living on the margins don't have that privilege and us less safe because it's removing lots of factors that keep people stable in their lives and therefore safe. The bail system creates a two-tiered criminal justice system, one for the wealthy

people and one for anyone who's not wealthy. And we often focus on how unfair it is that Paul Manafort or Harvey Weinstein or Brock Turner or any of these folks had the means to post bail and get out. But that's what we want. We want the system to allow for people to pay what they can so that they can get out. And it doesn't work that way. We don't have an equal dispensation of the law, and therefore it creates a lot of distrust and cynicism when it comes to our criminal justice system.

I imagine when some people hear you say that, they think, but what if someone gets out and commits another crime? How often do people on either of these two tiers get out on bail and then commit another crime? The question is kind of irrelevant because bail was never intended as a safety mechanism. Bail was intended to ensure that someone comes back to court. People fail to return to court.

But again, there are a myriad reasons that people fail to return to court that have nothing to do with them fleeing or misconducting. After the break, how to reform bail in the United States. Support for Today Explained comes from Ramp. Ramp is the corporate card and spend management software designed to help you save time and put money back in your pocket. Ramp says they give finance teams unprecedented control and insight into company spend. With Ramp, you're able to issue cards to every employee with limits and restrictions and automate expense reporting so you can stop wasting time at the end of every month. And now you can get $250 when you join Ramp.

You can go to ramp.com slash explained, ramp.com slash explained, R-A-M-P dot com slash explained. Cards issued by Sutton Bank, member FDIC, terms and conditions apply. Adam, I think anyone can look at the story of Kalief Browder and say quite plainly, the system is broken. It either doesn't work as it was designed or it was designed in a totally unjust, unfair way. I guess that's why we have bail funds to address that imbalance. But what do we do without bail? How do you ensure people come back for their court dates?

Particularly with the bail funds, but other nonprofits that have popped up around the country that hold themselves out to be pretrial services, nonprofits, they do things like text people reminders of their court dates, schedule childcare for them, help them work with their employers so that their employers either don't find out about or are happy to have their folks make their court dates, remove all of the barriers that are for the most part keeping people from coming to court. There are going to be the people who flee the country or go somewhere where we can't find them. But those people are so few to hold up an entire institution that we know causes all this damage. To catch those few is a silly way to go about things. From how many bail funds I've been seeing people sharing online, I'm guessing there hasn't been a lot of bail abolition in the country. Has anyone had luck with reform?

So the places that sort of stick out are New York, New Jersey, and California. In California, the state departed from its relationship with bail bonds, transferred the power of sort of decision-making around bail to judicial counsel, bail advocates, I would say, have reasonable disagreement whether or not that was a good thing because it was just sort of like moving the deck chairs around the Titanic. New Jersey is a bit of a happier story, although it's not perfect. They've abolished cash bail. They've moved to a preventative detention model that places a really high burden on basically the prosecutors to show that the person who is accused of a crime can't be out because they pose some specific risk of danger. As a result, you've seen pretrial detention plummet in those places.

And there was not sort of like the commensurate raise in crime that the bail bonds or the police departments were warning people about. My proposal last year was no cash bail, period. Period. New York last year had a lot of successful legislation around bail, and people were really excited about New York's move on bail. And as soon as it was sort of codified, the government and the legislature turned right around and rolled back a lot of the bail reform that the advocates had triumphed on. Changing the system, which we started to do, is complicated and then has a number of ramifications. There's no doubt this is still a work in progress, and there are other changes that have to be made.

There was never really the appetite for bail reform anyways outside of maybe the city. So like New York is an interesting place because we think of it as representative of the city of New York, but we forget about the rest of the state, which looks very, very different. And that's who controls the

legislature. Buffalo Common Council members Chris Scanlon and Joe Farrell-Lettle say a number of people in their districts are now worried about their safety. When people see news stories about someone driving without a driver's license, striking someone and killing them, and that person walking the next day with not even the possibility of bail is very concerning to a lot of people. Who's out there fighting to keep bail just the way it is? So there are a few bodies. One is the uninformed general public who understands bail to be the thing that keeps them safe from the bad people who are arrested, people who post bail and then go out and do something bad. They come up once in a while, and so those are really focused on by the sheriff's unions and police unions. Some people would argue that sheriffs have a vested interest in keeping their

jails full. Their budgets rely on how many people are inside of their jails, and so they have a financial motive. And then the most direct sort of like profit motive is in bail bondsmen. You pay them a percentage of your bail, they will put your bail up. If you fail to return, they keep the money that you paid them. If you return, they give you back some of the money, keeping a percentage for themselves. And you know, like I've seen up to 30% in some places, they're typically somewhere around 5 to 10%, but there are egregious examples all over the place. Are bail bondsmen a persuasive political force or is it, you know, their interests coupled with, say, the interests of police unions and sheriff's unions and even, you know, prisons and jails

themselves that make this sort of more compelling for politicians. They are a tremendous lobbying force as a singular institution because of sort of like their diffusion in the population. Just if you go to any jail where there are bail bondsmen and you just walk around the neighborhood where the jail is, you'll see them everywhere. How is that going to change? Do you feel like this is a moment or do you feel like the moment's still to come? I feel like this is a moment. But again, we've had plenty of moments where we get ourselves all worked up and then something else happens and we chase that bright and shiny thing

I don't know when people will feel the need to change the system lots of people are responsive to moments lots of people kind of get it because they have watched something or they've heard something that strikes them. But the people who are doing bail reform work, the people who are doing police accountability work, the people who are doing prosecutor reform, most of the people who are on the front lines are doing it because they've been harmed by these systems, personally or professionally or both. And most of the United States of America has a privilege never to have been harmed

by any of these systems. And so I'm skeptical of when that moment will come that people will actually feel that direct pain of the criminal justice system. It is foolish what we are doing. It is foolish what we are doing. It's embarrassing what we are doing, and we should all be embarrassed. There's only so long that we can beat ourselves on the chest

and talk about how great we are when we look around and the entire world is protesting and looking at us and saying, do something about it. Adam Foss runs a not-for-profit called Prosecutor Impact. It's an organization that tackles criminal justice reform, starting with prosecutors. I'm Sean Rommansferm. This is Today Explained.