BrainStuff Classics: Is There a Better Alternative to Cash Bail?

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 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 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 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, 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. 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 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 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 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 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 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 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 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 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 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

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 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. 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, 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 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 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 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.