Well. Joining us now is Jeffrey Jay Clayton. He is the executive director of the American Bail Coalition, and I wanted to talk to him about what is happening and all over the country as part of what we see happening with these prosecutors or turning criminals back down on the street catch and release. What triggered this 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 twelve cities in LA County have sued. 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 Jay 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, as I said, what is the misconceptions about bail, what is it good for, and the importance of it. But tell us little bit about that lawsuit first, absolutely, and really it's sort of
a combination of two lawsuits. There's an activist 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, and their final stop is Los Angeles. We've been opposing that along with a variety of cities from around the country and have won a couple of those cases, and 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
is named as a defendant in the case, defended the case. And so the activist group one that the bail's schedule is unconstitutional, 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 influenced crimes and other crimes that now have bails are going to have zero bails 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 theil 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 has 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 catcher. Release. You know, you don't have to pay bail, you don't have to see a judge. 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's statute in California dates to the early nineties, I believe, and requires a bail schedule and has various rules on when the judges can go up and down with the whole that we have the uniform bail schedule right, that we treat people equally is the reason that we have a bail schedule. And 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 are we going to do with all these people on zero bail when they continue to reoffend 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 rather than leave it up to judges.
Yeah, I know, having a bail set. Yeah. The leader of the Conservative Party in Canada was questioned about that and he said, you've got to be kidding, you know. They said, well, can you prove that people on being released early without bail 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, 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 repeating offenses like this. And the person says, yeah, but can you prove 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 nineties, but of course bail has been around, it's nothing new. It's been around since the creation of our form of
government. That'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 Magna carta. There's a lot through English history that I'm not going to get into, the Five Nights case, Lord Coke, all that sort of thing, But the essence of it was that the government cannot imprison you, that 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 the third party putting up a financial guarantee as part of the common law. With that meant was you had arrest powers and you could go across state lines. Supreme Court, I believe, in the nineteenth century called it the option to select the jailer of ones choosing, and I
believe this room Court also said we are a friend. 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 nineteenth early actually early a twentieth 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 Wende Holmes of course said, no, you can do that in states can regulate that, and so forty six states have said that you could have commercial suurities in
the United States. And so really it is an ancient form of our due process has been around for centuries, and so what is new is the idea that we don't have any bail. And again, what is the if you don't have a situation where you have as you point out, do you choose your own jailer, which 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 what is happening in La and in San Francisco and the rest
of these people. It is total anarchy, isn't it. Yeah, it's end money bail. And then what really there's only two options. We go to the federal system of detaining through out of four defendants using what I would consider to be an arbitrary power that we really didn't have, or we say you get a zero bail and we just release people that are completely dangerous. And so in Californi, 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's the distinction. And those people that stay in jail have a zero new crime rate other than the crimes that commit in jail, and that should be factored into all of this,
and fortunately 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, when they stay in jail pending trial, they don't commit new crimes. Now at your website, they're 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 so that you point out, but tell the audience why that is. It's not about poor people languishing in jail. Well, judges are tasks under state and federal law with adjusting the bails based on people's
income, 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 bill 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 thirty 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 bills, 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 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, you know, some of these lower level charges that we've seen, you know, sleeping on the park benches and stuff, we had a lot of arbitrary miss in the
system that needed to be fixed. But on the top end, you know, felons repeat felons. I mean, these people are multiple time violent criminals. The average person doesn't post bail in this country has ten prior strikes or more, prior felony convictions, prior misdemeanor convictions, prior failures to show up in court, so they're not you know, 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 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 point out, it should be adjusted
also for their income. But it's kind of a thing that you know, says this is a seriousness of the crime and the risk of letting this person out, 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 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're prosecuting the victim of the crime. Under Marci's Law, and the state of California and other states has a right to be heard on deil of what they think the bill 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 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 It's companies by the Comprehensive Crime Control Act, and so we're regulated heavily in all the states that we do business. There's been you know, lawsuits over you know, consumer protection laws being applied, and I would just say they're continuing to be applied in various states, and so
you know, I think the laws are enforced on bail agency. 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 to rest 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 department state, departments of insurance, but other states do it differently and use sort of the same bodies that regulate police officers arrest powers to impost 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 the powers, because of this person's skips, they've got to be able to arrest this person and bring them back to me. It seems like a very ancient perspective of you know, things like putting like marks of retainer on you, 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 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 insurance at under red bail, we cut through all that.
We allow people in whatever communities that want to become mail agents and service personal sureties to be able to do that. And I think without that level of national iime writing, it would it would make it harder for there to be people to come into the bill 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 it 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 a that's an important thing,
as we know for various reasons. You know, they put on the better defense, they get their acts together in terms of probation and trying to argue for a better sentence. I mean generally that 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 been changing over the last several years. Chris Christy 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 till the Bail Reform Act of nineteen eighty four, when we came up with a new idea, which is, we'll just lock up the people that we labeled dangerous and we'll let everybody else out and supervise the amusing federal pre trial services
and the US Marshall Service to arrest them. That was the federal model, largely thought unconstitutional because we had this right to bail, but the US Supreme
Court decided otherwise, and so that was the movement in New Jersey. I would 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 dangerousness to get any bail, and that we were going to 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 with know certainty of one that's going to be or you get released on your own recognissance. 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. You see 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 the percentage of motions filing for detention increasing, and so you know, it's really a question of whether that's a system long term. Is that better you know, for the half
billion dollars you know they've spent on it, We don't think so. 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 to be it lies right now is to end cash bail and then what right, what do we do
then? And none of the alternatives really seemed to be much better than the constitutional framework we've been working in, you know, for four hundred 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, we're looking at this and thinking about the j six people.
You know, the January six ers, 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 a returning USB Salerno, which is since nineteen eighty four. You know, in nineteen eighty four, if January sixth would have happened one, there would have been bail, so they would have had a seventy six percent chance of getting out, not a seventy six percent chance of staying in. So
we flip flopped that since nineteen eighty four. The other thing that's been unbelievable, that a report called Freedom Denied from the University of Chicago pointed out recently, is that the speedy trial time when there was bail in the federal system was sixty days was the average felony. That's up to three hundred and sixty days now. So what's happened is and as Justice Thirdgod 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 flow 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 pre trial incarceration.
If we can try them in nineteen eighty four and sixty days with all this new fangle 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 bill industry could come bail out fifty percent 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 pre trial unnecessary pre trial incarceration. The other example I'll give is Michigan. You know, eighteen percent of defendants pre trial caused eighty two percent of jail
costs. And those are people that stay thirty days and longer. So you can do all the bail reform you want, but if you're not hitting the eighty two percent, 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 fit in jail pending this outcome in half. Would get them on a 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 us to happen we just take a shortcut to conviction. And then everybody's arguing, oh, preventive attention, 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. You know, certainly getting caught, swiftness of punishment, and that's basic, and that goes back three hundred years, right, 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 you know, immediately release these shoplifters, these
shoplifter gangs. You 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 J sixers, 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 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'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 preventive attention. 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. You know, the other extremes, just as arbitrary, is that we say, well, you know, basic shoplifting, okay, then that's fine. Well what if it is the fifteenth 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 into both both
ways. And that's why this history of bail and securing your release it has been kind of the best way to draw this balance and let you just Unfortunately, you know, people say, you know, we need you judicial 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 sends up being too arbitrary. I think give us an idea of where this issue is
now. You know, we saw this several years ago in New Jersey and of course have made the Democrat station at California, Illinois, Connecticut, other things like that. You know, what is the general situation? What is the 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.
I think we are seeing it in two places remaining, which is sort of Los Angeles and and what just happened in Illinois with the Illinois Supreme Court affirming the Safety Act, which is basically a smaller version of a new 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, you know, there's been some conversations in other states about you know, going more to detention policies, but not you know, necessarily as the 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. So as you look at this, how would you say the momentum is is a 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 a 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 a message that you are going to and conduce 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 will 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 non violent, so let's just let them go. People realize, they're 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 do
process. You know, we have these things that are there, things like try by jury, habeas corpus bail. These are tried and true that we're 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 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 a 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. Thank you so much for joining us and explaining that. Thank you you got
it was a pleasure. Thank you. We're going to be right back. Folks, to take a quick break and we'll be right back. You're listening to the David Night Show.