The August/September 2018 Reason Magazine cover story features an issue of bi-partisan interest — the injustice of the cash bail system, which coerces poor defendants into guilty pleas. For those who can pay, bail means avoiding jail before they even get a trial. For those who can’t pay, it often means lost jobs, and mega-hassles, even if they end up being found innocent. Does this represent a violation of the great American legal principle of innocent until proven guilty?
In the essay, author Scott Shackford details several sad and often infuriating stories of people who clearly pose no threat to society being held on exorbitant bail charges. While it’s understandable that we would lock up a murder suspect with a criminal record awaiting trial, the whole point of the bail system is to allow those who are wrongly convicted or generally law-abiding citizens to serve only the time they are formally sentenced to — not a pretrial jail term that can sometimes be as long as the actual sentence.
Around half a million Americans are sitting behind bars who have yet to be convicted of a crime, writes Shackford. This issue has brought together some strange bedfellows, including Senators Rand Paul with Kamala Harris (co-sponsors of the Pretrial Integrity and Safety Act), as well as Google’s charitable arm with the Koch Foundation. Most recently, Bernie Sanders introduced the No Money Bail Act, but like Harris and Rand’s attempt, the bill is unlikely to pass through committee.
While Federal reform has stalled, Shackford takes note of a handful of state experiments with reforms that are making the system less biased against those who can’t afford bail. These efforts include eliminating cash bail, and encouraging judges to find alternatives to putting people in jail before their trials.
Some blame the $2 billion bail bonds industry for the lack of reform to date. Google even began blocking their ads on its search platform. This approach, however, may be flawed. Bail bonds, after all, are a legal service, and one that helps the system to function at that. As Marginal Revolution blogger Alex Tabarrok notes, “preventing advertising doesn’t reduce the need to pay bail, it simply makes it harder to find a lender.” Furthermore, taking away the option of judges to detain people who can’t afford bail has in some cases led them to merely put revoke that option altogether and hold them without bail.
Shackford joins the show of ideas, not attitude, to tackle a difficult but important topic of the American justice system. He and Bob discuss the constitutionality of bail, and why the founders considered it important enough to limit “excessive bail” directly in the Eighth Amendment to the Bill of Rights. Pick up a copy of Shackford’s article on newsstands, and tune in for your weekly dose of libertarian ideas.
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Cash Bail: Guilty Until Proven Innocent?
Bob Zadek: Hello everyone. Welcome to The Bob Zadek Show, the longest running live libertarian talk radio show on all of radio. The show has been on for about 13 years and has always been the show of ideas, never the show of attitude. Thanks so much for listening this Sunday morning. Americans take pride in the first principles of our country — as Jefferson wrote in the Declaration of Independence: Life, liberty, and the pursuit of happiness.
How would you feel if you lived in a country where freedom has been so cheapened that it can be bought? Sometimes it’s only available if you buy it. We live in a country where freedom for many Americans can only be purchased. We are talking this morning about the subject of cash bail. All of you know about bail in the most general of ways. You know it’s something you have to pay if you are caught committing a crime or accused of committing a crime and your choice is between bail or jail.
Let’s look under the hood of the system of bail in America this morning. You will be enraged, surprised, and embarrassed, and you will feel the same intensity that this morning’s guest Scott Shackford of Reason Magazine felt when he wrote his piece, “Innocent Until Proven Guilty: But Only if You Can Pay.” Scott, welcome to the show this morning.
Introduce to our audience the concept of bail and enable them to appreciate the importance of the subject in general. Cash bail, particularly, was important enough to all founders to have found its way into the bill of rights as part of the eighth amendment to the Constitution. And in the eighth amendment to the constitution, the statement which our founders gave us was quite clear: “Excessive bail shall not be required.” “Shall not,” of course, can be read as may not be required. So, for the founders, the subject of bail was pretty gosh darn important. It was important then, and it is important now. Tell us the thesis of your piece in Reason Magazine.
Scott Shackford: People know that we have a system of bail, and that’s about all they know. What people know is that when people are arrested for a crime, they go before a judge and the judge decides whether or not they can be free before they actually have their trial. But what people generally don’t understand about how it works is that the system has become a mechanism for keeping people behind bars. So, we have a system where somebody has been charged with a crime will go before a judge. And it’s actually to determine with feedback from prosecutors and the defense attorney, if there’s one there, the circumstances in which this defendant will be allowed out of jail prior to trial. Over time, judges have frequently come to be depend on cash bonds, or money bail. This is the idea that if you give the government X amount of dollars you can go free until it’s time for your trial.
There are two reasons for this. The main reason for this is to make sure that they show up for trial and show up on the court date and don’t skip town. So, we have this bail bonds industry to make sure that people come to the court to face trial.
Bob Zadek: Scott, if I can just interrupt, because you made a very important point and I want to be sure that our friends out there appreciate the importance of what you said at the time. Let’s say you are arrested and arraigned, but you haven’t been convicted of anything. You are, in general, as entitled to be free as anybody else on the planet. However, society decided — and probably correctly — that there is a greater likelihood of you disappearing because if you hang around, you are going to be tried and maybe convicted. Therefore, society has decided that if you put up a security deposit, then society will be better off. This has nothing to do with punishment. We want to be sure you show up so you’re not. Nothing you did so far that requires you to be jailed. This is important to bear in mind as Scott goes on with his story.
Scott Shackford: Yeah, that’s right. So, what has happened over time is that courts have become increasingly dependent on using bail schedules as the default mechanism without a tremendous amount of consideration or discussion on whether or not an individual is an actual flight risk. What has happened is that defendants will come in, there will be a list of charges, and the risk will be assessed on the basis of how much of a penalty you can face if you’re convicted. There’s a logic to it that has backfired tremendously. The more charges you face, the more time you may end up spending in jail, and the more the judge will be concerned that you won’t show up.
Your bail is set not on the basis of whether or not you’re at risk of flight or whether or not you’re a potential danger to your community but on the basis of the charges against you. So, essentially you are being treated like you are guilty of those charges in advance. That then determines how much you must pay in order to be free. The end result is that we have hundreds of thousands of Americans who are in jail prior to being convicted. We have about 2 million people in prisons and jails in America. On any given day between 400,000 and 500,000 of those people have not been convicted of a crime. They sit there waiting for trial.
The Industry Behind Bail
Bob Zadek: So they are in jail not because they are worse than those not in jail, but simply because they didn’t have the financial resources to post bail. Now, when you post bail, and this is an important part of your research, you are required to put up money or mortgage your house, or put up some property of yours to make sure you show up. But most people don’t write the check because they don’t have that much money. So that brings us right into the bail bond industry. And what are the economics of that? How does that work and how does that play into the system of cash bail?
Scott Shackford: If you get charged thousands of dollars that you have to put forth, very few people can do that. I believe half of the people who can’t afford bail and who are in jail right now, can’t even afford $5,000 bail. They’re simply in there because they cannot afford it. So, if you have a $50,000 bail you can put toward the $50,000 dollars, and if you make all of your court dates, you will get that money back. You can also, in many states, pay a bail bondsman around 10 percent of that money. The bail bondsman will cover your full bill. So, if you have a bail of $50,000 you pay the bail bondsman $5,000 and the bail bondsmen covers you.
The bail bondsman is responsible for you in the court, so if you skip out, the bail bondsman will either bring you in, or that bail bondsman is responsible for $50,000 to the court. You never get that $5,000 back that you paid to the bail bondsman, even if you’re found innocent, and even if the case is dropped entirely. And so this has become a tremendous sort economic situation that has caused really a lot of attacks on the bail bond industry.
I try to be careful about not making the bail bondsman the villain here. For a lot of people who are in favor of bail reform, they really see the idea that the bail bond industry is profiting billions of dollars off of people who have to give them money or sit in jail.
Bob Zadek: Well, of course, they are providing a service. We all know that if there wasn’t a bail bond industry than all those people who have the premium but not the cash bail would be in jail. So in point of fact, the bail bond industry provides some people who can afford the premium of freedom when the alternative would be incarceration.
Scott Shackford: Exactly. That is why I don’t villainize the bail bondsman. The issue is the drug war. The issue is this criminal justice system that is very casual about arresting and putting people behind bars in the first place. The discussions and debates I have had had speaking with bail bond representatives and their argument in fighting back against these reforms is that people should have a constitutional right to pay cash for bail if they want to. They will say, “I don’t necessarily think that everyone should have to pay a cash bail,” but they argue that cash bails should be a choice that defendants should get to make.
Bob Zadek: Now say we have a defendant who gets arrested because somebody thinks he might have done something criminal. There is enough evidence to induce the police to arrest. And for the arraignment the judge says there is enough going on to invite suspicion that he might have done something wrong. So, the defendant gets into the system. This defendant, very often, is somebody without a lot of financial resources, and they are told they will be in jail if they do not post bail. And now we get to the thrust of Scott’s research. Your time in jail is determined solely by the amount of money you have. If you don’t have enough money to post bail or to pay the premium, that is the only determining factor that decides jail or freedom.
That’s where the rubber hits the road in Scott’s story. Now, Scott, tell us about how damaging this can be. Remember that the defendant is innocent, but what happens to this innocent defendant whose only crime that we know about so far is that he or she doesn’t have enough money to pay the bail premium or post the cash bail. So, now what happens to this person?
Scott Shackford: They sit in jail. Now, studies show that three days in jail really starts to affect your life and your personal economic situation. The story I used actually for this in my piece originates from San Francisco is a gentleman who was a cab driver and is now retired in his seventies. He was having a conflict with his neighbors, who were a couple of young men with a tendency towards partying. One day he decided to go next door to confront him. He did something that he should not have done. He brought a gun with him. So, fortunately nothing happened. The confrontation didn’t happen because one of the young men saw him through the keyhole and saw the gun and did not open the door.
The police came, he was arrested, and he was willing to confess to brandishing a weapon. He acknowledged that he should not have brought it there and that what he was doing was wrong. The prosecutor filed all sorts of charges against him including attempted murder. Very serious charges. So, he was facing 17 years in jail if convicted. The judge saw that, and gave him a bail of $625,000. And the judge’s reasoning was that although he had no criminal record and was in his seventies, and this was the first time he was ever arrested, he was a threat, because he could start some additional confrontation if allowed to leave. Moreover, he was called a flight risk because of the amount of time that he faced.
So he had this huge bail hat he couldn’t pay and he spent the entire time behind bars waiting for his trial. He spent nine months of last year behind bars. He was completely exonerated before a jury in his case. Now, the prosecutor had piled on all of these charges. He was found innocent, but he lost his taxi medallion. He was poor and that was his only source of income. So, he almost got evicted. Fortunately he was able to keep his place.
There are studies that show that when you are trapped behind jail and are poor, people lose their jobs and their source of income. It disrupts family. People who are stuck behind bars are more likely to be convicted of these crimes. They are more likely to accept bad plea deals because they don’t have any leverage or negotiating ability. Oftentimes the system of justice is slow. Even on these lowlevel charges, they will have essentially served their time while waiting for their trial. So what’s the point of fighting anymore?
Bob Zadek: And therefore they take plea deals, especially when encouraged to do so by overworked public defenders. Let us assume they are innocent. Remember they haven’t had a trial yet, but now they are in jail because they couldn’t make bail. That was the only reason. They’re in jail for a long time waiting for trial and now they are offered a plea deal, and the plea deal might very well be time-served. So they do the plea deal. They plead guilty to whatever the charge is. They get out of jail, even though they are innocent, but now all of us know that they have perhaps been convicted of a felony and they have a criminal record.
So, now they have trouble getting an apartment, except maybe in Seattle. They have to check the “yes” box on a job application of being convicted of a crime. They might not be able to travel anymore because TSA will perk up when you check that box. Their life has been profoundly changed. And remember in the hypothetical I am presenting, they are innocent. This is the problem Scott is bringing to our attention this morning.
Scott Shackford: Yes. And the research shows that if you let these people out of prison, if they don’t need to be there because they’re not dangerous or they’re not a flight risk, they can go back and, you know, and this is how, this is how we’re trying to try to sell bail reform to conservative actually, um, uh, they are more likely to have jobs there over the next day. There was a study that was just released last earlier this year on the long-term effects between people who were freed prior to their trials versus people who are stuck in jail prior to their trials. And people who were freed prior to their trials have a higher employment rate and earn more money. So if you free people, not only are you reducing the cost of the prison industrial complex on taxpayers, but they are also contributing to society and are more likely to be contributing to society a couple of years later.
Bob Zadek: And, of course, judges are human beings. And Judges have fear of some headline where some judge releases some defendant who is accused of a crime — or gave them low bail or no bail — and this released defendant did another bad act, such that the headlines will be that the judge released somebody who was a threat to society. So, the judge has a profound bias to set a high bail even when bail may be inappropriate because he’ll never have a headline for setting bail too high, but might have a headline if bail was set too low.
That is the problem. There are some very interesting bail reform measures working their way through the system. Some have been tried with success, some with no success. And what is most interesting about this is that it has bipartisan support. We will learn after the break that none other than Senator Rand Paul and Senator Kamala Harris have joined forces to initiate some very interesting bail reform measures.
Scott Shackford covers tech, surveillance, privacy, criminal justice reform, lgbt issues, national security policies, and sometimes wedding cakes, at Reason.com. Scott, you have a busy agenda and there are lots of stuff to cover. Of much importance to us this morning is Scott’s wonderful piece, “Innocent Until Proven Guilty, But Only if You Can Pay,” where Scott discusses the abuses and the need for reform in the subject of bail. Bail is the ugly underbelly of the American criminal justice system because it reduces us to a society where you have to buy freedom under certain circumstances. How offensive is that?
Bob Zadek: Now, Scott, we talked about the primary purpose of bail being to ensure you show up for trial. The purpose is not to punish or incarcerate you. And therefore, the only issue before the court is to make sure that you are not a flight risk. If you are not a flight risk, you should not have to put up any money.
However, courts go beyond that. Another factor for a judge to consider in deciding bail is the subject of protective detention. And that may be. Is the importance of that perhaps exaggerated? I’ll leave the audience to decide that, but tell us about the related topic of “protective detention.”
Scott Shackford: One of the other issues that judges are really worried about is whether the defendant is at risk of committing other crimes. Even if the defendant is innocent they may still pose a public safety concern. They are out in the street and may do things like attempt to interfere with the trial or commit more crimes.
You have a constitutional right to be free prior to your trial unless the court decide that you’re going to run away or that you’re a danger to society. But what happens in a lot of states is that they have constitutional requirements for bail. So this requirement that they be allowed to be free does not take into account the nature of the crimes they have been charged with. New Jersey’s system is different now and is a model for other states. In New Jersey, unless someone was charged with a capital crime, they would be offered bail of some sort.
There had to be either money bail or some opportunity for them to get out of jail prior to trial. The end result of this was that some very dangerous people who had not yet been convicted obviously, but who had a lengthy history of violent or dangerous behavior who were stalking girlfriends, etc., were offered bail. And so when New Jersey was developing this idea of reforming their system, they actually had two goals. One was to make it possible for these low level people who were being charged $5,000 and could not afford to get out of jail the ability to be free if they were not a threat to the community or a flight risk. And most of them are not flight risks.
But the other goal — and this is how they got people like governor Chris Christie and other conservatives and tough on crime folks to support it — was to to change the constitution to institute the policy that if someone is believed to be a danger to the community, they don’t have to offer them bail at all. So now it’s an environment in New Jersey where either you are released with a whole bunch of conditions or you’re not. Money isn’t a factor.
Bob Zadek: We will talk about what bail reform looks like because I hate to present a problem without having a really smart guest such as Scott who can also present the solution. New Jersey is at the forefront, but judges have always considered both whether you are a flight risk and whether — even though you may not be a flight risk — you are a pretty bad character and are a danger to society. So the judge will make a finding that even though you are not a flight risk, if you are a threat to society the judge will impose high bail.
One of the purposes of incarceration is to protect society. But here bail is used at an earlier stage to protect society before a defendant is even convicted. As a fun fact, Scott, I don’t know if you know the answer to this. I have done an unofficial check. Who is the individual against whom the highest bail in the history of the planet was ever imposed?
Scott Shackford: That you got me there.
Bob Zadek: It was Durst. When Robert Durst was arrested in Texas. We all know about the Durst, the scion of the Durst real estate family in New York, who was the subject of a wonderful TV series. When he was arrested and accused of killing his roommate in Texas, and he was arrested., the bail was set at 3 billion. He has the record in society for the highest bail, which he didn’t post, e was famously quoted as saying when asked about a $250,000 bail, “of course I’m going to pay the bail and of course I’m going to run away. Don’t be silly. What is $250,000?” That’s like a rounding error to him. So they imposed bail at $ 3 billion dollars.
To highlight a Scott’s point about how bail often has little to do with whether you are a flight risk, remember the killing at Stoneham and Douglas High School in Parkland Florida earlier this year. The brother of the accused, Nicholas Cruz (Zachary Cruz), was accused of trespassing on the school grounds of Stoneman Douglas High School. When he was arrested for trespassing on the school, the judge set his bond at $500,000. This was for a single misdemeanor offense. Talk about excessive bail.
So, those are the two record-breaking cases that I thought I would bring to our friends’ attention. Now that we have identified the problem I should mention a tweet yesterday from one of our listeners. They asked how many people have lost their jobs or perhaps even their homes simply because bail had been set too high. The listener also asked if you know who profits from the bail industry — I think that’s pretty clear now that it is the bail bond industry. But any thoughts on those two questions?
Scott Shackford: We don’t really have reliable statistics. That is the thing that has been moving people to try to get more and more information. One of the challenges is that states have their own systems, and so your experiences vary wildly from state to state. Even the study that I talked about earlier showing the economic differences between people who are detained versus people who are freed are based on one metropolitan community out of the entire country. So we really don’t have widespread numbers. The Pretrial Justice Institute, which is an organization that’s devoted to helping develop pretrial tools that can be used as alternatives to cash bail, came up with some data that shows that if anyone is in jail for more than three days, it really starts to affect their personal lives.
The nastiest component of this is that the poorer you are, the worse it is for your second job. Because if you’re an impoverished person, you probably don’t have a lot of job skills, and the way that you survive is to use your body in a low-wage job capacity where the most important thing is for you to be there to do the work. You know, if I ended up in jail, I could write from prison, but a lot of really poor people can’t do that. And so they lose their jobs because they physically can’t be there.
Obviously when we talk about the bail industry, one of the things I would point out is of course that money flows to the court system. The court systems themselves gets paid. I was actually just looking at some stats yesterday and I think just the Los Angeles courts collected $190 million dollars last year from people putting up bail. So the court system profits. This creates incentives for prosecutors to lay down charges to make people pay for their participation in the court system.
State Experiments: Bail Reform Measures in New Jersey
Bob Zadek: There were some wonderfully creative attempts successful at that in reforming the bail system so that we don’t impose yet another burden on the poorest segment of society where their only crime may be that they are poor. Tell us about the efforts being done around the country and nationally to enact bail reform bills. How can society be protected? Can we be assured that defendants show up for trial care without ruining their lives in the pretrial phase of the criminal justice system? And how did these bail reform measures work? Tell us about the use of algorithms and big data in the process.
Scott Shackford: Our technology has advanced tremendously. Obviously, our ability to communicate with each other has increased. You know, I’m doing this interview with you while pacing around my apartment. 20 years ago I would need to call them on the phone or even come and visit you at the studio to do an interview. So we have so many better ways to communicate with each other. And yet, government always lags behind the technology.
One of the problems is that we need to make sure they show up for trial. Well, the courts historically have not been very good at keeping tabs and communicating outwardly to people. They are expected to come in for trial, so the bail bondsman, with their financial incentive, would make sure that defendants had the information they needed to show up in court.
New Jersey implemented a system that had a tremendous amount of communication. They instituted their own pretrial justice system to communicate with defendants so when someone is released from jail in New Jersey, they have orders to communicate with the office on a regular basis so they can keep track of them. They can be informed and stay informed of where they are supposed to go, when they’re supposed to show up, and so on. If there are any changes they are sure to inform the defendant. This has been successful in increasing the likelihood that a defendant shows up for trial. One of the things that people discovered is that sometimes when a defendant doesn’t show up for trial for a court date, it is not always the their fault. Sometimes the defendant has bad information because there has been poor communication for the defendant, and he or she doesn’t know where to go.
So, the first goal was to establish a better way of communicating with defendant so that they understand what is supposed to happen. The next step was to come up with better systems than just a simple bail schedule, by figuring out who should be allowed to be free. That is where we talk about algorithms. In New Jersey they have been working for years to implement this. For example, Governor Christie started this system where, if you get arrested and are brought into jail, you are brought to this pretrial services office where they have all these computers. Your name is put into the computer and your criminal background is searched with an algorithm that calculates your risk factors, such as those two risk factors that we talked about — whether you’re going to skip out on the court and whether there’s a a public safety risk.
Based on this algorithm a flag will pop up showing your risk assessment. If you’re somebody who has been convicted and sentenced for crimes in the past, it will increase your risk factor.
All of that information goes to the prosecutor and the defense and to a judge. So within 48 hours in New Jersey, you will go before a judge to determine whether or not you’ll be released immediately. If the prosecution wants to make the case that you are dangerous or a flight risk, they will set a set a hearing to determine whether or not you will be detained. So in my story, I actually attended some of these hearings in New Jersey at the Patterson courthouse. Everyone gets these algorithm numbers and they are on a scale. This is going to be important because there is going to be debates on how the reform plays out. They don’t just make decisions based on these numbers. They’re going to get these numbers from this algorithm that determined risk.
That informs the judge’s decision and informs the prosecution and the defendant. It doesn’t make the decision itself. There will be discussion with the judge and prosecutor and they can exercise their discretion. If the person is not considered a risk, the prosecutor will release them and put them into contact with the pretrial services division to make sure that they know what they’re supposed to do next. If they have a higher risk factor and the prosecution believes they want to keep him or her behind bars prior to trial, there is a detention hearing which is like a mini-trial where the prosecution attempts to convince the judge that there’s no way to make sure that the defendant will show up for trial, or that the defendant won’t commit further crimes or interfere with the case if he or she is free.
The judge will make the call. I attended one of these hearings where they tried to keep a gentleman who was caught with all sorts of drugs as a dealer. There were no guns and no recent criminal history, so all that information above and beyond the algorithm existed. So, the judge decided to release the guy but with very strict requirements for him to stay in touch with pretrial services. If they lose track of him or he doesn’t show up, he’ll get yanked back in and could possibly end up going to jail.
So essentially the short version is the courts need to do a better job of communicating and keeping track of defendants if they’re going to release them from jail.
Bob Zadek: What strikes me in your story as astonishing is that here we are discussing this reform as if it was a breakthrough and all you have told us is the courts are making the most important decision a court can make, whether somebody goes free or not. We have these “breakthroughs” which are simply the court system adopting a system which credit grantors have adopted for a decade in deciding who gets credit — simply processing data, and doing an intelligent job in building the predictive algorithm — nothing more than any merchandising company does or any bank does. And yet it goes in the headline as a “reform” like we are putting someone on the moon or on Mars.
It’s astonishing to me how slow to change the judicial system is on the most important function they perform — are people denied their freedom or not? It should be routine, it should be boring. It should not be the subject of a one hour show on a Sunday morning.
I believe you mentioned in your piece how expensive it is to jail somebody, and these people are in jail for months because they couldn’t make bail. The cost–benefit is overwhelming in favor of reforms. To me, that is the takeaway. Now, Scott, I want to thank you on behalf of all my audience and myself. Your piece was wonderful and really brings to our attention an interesting issue because libertarians and progressives can come together on this. We hope there’s going to be benefit on the federal and state level. It looks very optimistic.
How can our friends out there follow your writing and the work of Reason?
Scott Shackford: You can find me easily on Reason. I blog on a daily basis during the week. So just look for my byline. My name is Scott Shackford. You can follow me on twitter.
Bob Zadek: Ehat are you working on now, Scott?
Scott Shackford: I’m following what’s going on with the bail reform movements. Bernie Sanders just introduced some legislation last week to try to eliminate cash bail on the federal level in the next three years. So, I’m keeping track of these activities and keeping an eye on California.
- Innocent Until Proven Guilty, But Only If You Can Pay, by Scott Shackford, Reason cover story for August/September 2018
- Follow Scott on Twitter, @SShackford
- Google Bans Bail Bond Ads, Invites Regulation — Marginal REVOLUTION by Alex Tabarrok, May 2018
- Kamala Harris and Rand Paul: To Shrink Jails, Let’s Reform Bail — The New York Times, July 20, 2017
- Pretrial Justice Institute