WEBVTT 1 00:00:04.960 --> 00:00:09.080 Well. Joining us now is Jeffrey Jay Clayton. He is the executive director 2 00:00:09.080 --> 00:00:13.199 of the American Bail Coalition, and I wanted to talk to him about what 3 00:00:13.320 --> 00:00:17.600 is happening and all over the country as part of what we see happening with 4 00:00:17.640 --> 00:00:22.399 these prosecutors or turning criminals back down on the street catch and release. What 5 00:00:22.640 --> 00:00:26.519 triggered this in particular, this has been going on for a while, It's 6 00:00:26.519 --> 00:00:31.480 been going on for several years. But in LA they recently came up with 7 00:00:31.519 --> 00:00:39.439 a zero bail release policy and twelve cities in LA County have sued. So 8 00:00:39.479 --> 00:00:42.159 we want to talk about that lawsuit, but we also want to talk about 9 00:00:42.399 --> 00:00:48.439 the broader issues involved with bail, why that has been a long term part 10 00:00:48.600 --> 00:00:53.159 of our government and our criminal justice system, and the importance of it and 11 00:00:53.200 --> 00:00:56.960 the misconceptions about it. So joining us now is Jeffrey Jay Clayton, executive 12 00:00:56.960 --> 00:00:59.399 director of the American Bail Coalition. Thank you for joining us, sir, 13 00:01:00.359 --> 00:01:03.040 thanks for having me on. Let's talk first of all about what is happening 14 00:01:03.040 --> 00:01:07.079 with this lawsuit, the issue right in front of us, and then I 15 00:01:07.079 --> 00:01:11.560 want to get into, as I said, what is the misconceptions about bail, 16 00:01:11.640 --> 00:01:15.680 what is it good for, and the importance of it. But tell 17 00:01:15.719 --> 00:01:21.400 us little bit about that lawsuit first, absolutely, and really it's sort of 18 00:01:21.439 --> 00:01:26.040 a combination of two lawsuits. There's an activist legal group called the Civil Rights 19 00:01:26.040 --> 00:01:30.519 Corps that's been suing small cities throughout the United States for now going on seven 20 00:01:30.599 --> 00:01:36.400 years over their bail systems, and their final stop is Los Angeles. We've 21 00:01:36.400 --> 00:01:41.200 been opposing that along with a variety of cities from around the country and have 22 00:01:41.239 --> 00:01:42.560 won a couple of those cases, and we can talk about those later in 23 00:01:42.599 --> 00:01:48.079 other courts of appeals. So what happened here was that particular group sued the 24 00:01:48.159 --> 00:01:52.799 judges in Los Angeles and alleged that the bail schedule was unconstitutional. And what 25 00:01:52.920 --> 00:01:57.640 happened was neither the city, the sheriff, or the Attorney General, who 26 00:01:57.680 --> 00:02:00.359 is named as a defendant in the case, defended the case. And so 27 00:02:00.480 --> 00:02:05.439 the activist group one that the bail's schedule is unconstitutional, arguments frankly that I 28 00:02:05.439 --> 00:02:07.800 think, you know, maybe some defense could have been put on, but 29 00:02:07.840 --> 00:02:13.159 because none was put on, the judge decided to go to the zero bail 30 00:02:13.240 --> 00:02:16.879 schedule, which Los Angeles adopted during the pandemic pending the outcome of the case. 31 00:02:16.919 --> 00:02:20.240 So these judges got together and said, well, we've got to do 32 00:02:20.280 --> 00:02:23.759 something. So they set a new sort of interim process of a bail schedule 33 00:02:24.039 --> 00:02:28.000 that we think will be in effect for a while until we figure out what 34 00:02:28.039 --> 00:02:30.719 the next stop is going to be. But in the meantime, it means 35 00:02:30.759 --> 00:02:36.159 you know, things like you know, shoplifting, some driving under influenced crimes 36 00:02:36.199 --> 00:02:38.759 and other crimes that now have bails are going to have zero bails automatically. 37 00:02:39.360 --> 00:02:43.759 Which is another important problem there is that they're not going to be seeing judges 38 00:02:43.800 --> 00:02:47.400 as the default. Right the default before was theil and then they could see 39 00:02:47.400 --> 00:02:50.280 a judge. Now it's just going to be zero. They're going to be 40 00:02:50.280 --> 00:02:52.639 released and not see a judge. So it's not like they're kicking them to 41 00:02:52.680 --> 00:02:55.759 a judge to have it evaluated at that point. So that's where we stand, 42 00:02:55.840 --> 00:02:59.560 and so we're going to see, you know, the impact of this 43 00:02:59.719 --> 00:03:04.120 zero bail schedule when it's enforced, not during a pandemic, and when you 44 00:03:04.159 --> 00:03:07.800 know you're seeing crime increase. And we've seen the result of this when we 45 00:03:07.800 --> 00:03:13.240 look at the massive looting that has shut even you know, big box retailers 46 00:03:13.240 --> 00:03:16.280 from Wall Street can't survive with the kind of looting that we have seen going 47 00:03:16.319 --> 00:03:21.120 on, and that's being facilitated by just this catcher. Release. You know, 48 00:03:21.520 --> 00:03:23.439 you don't have to pay bail, you don't have to see a judge. 49 00:03:23.520 --> 00:03:29.240 Just immediately release the people. If there's no penalty for organized theft, 50 00:03:29.759 --> 00:03:31.840 this is going to continue to escalate. Let me ask you. You said 51 00:03:31.879 --> 00:03:37.000 that they went back to you know, they had a zero bail policy as 52 00:03:37.039 --> 00:03:40.680 part of the COVID lockdowns and things like that. This other policy though that 53 00:03:40.719 --> 00:03:46.439 they said was unconstitutional. How long had that been in effect prior to the 54 00:03:46.560 --> 00:03:52.599 change with the pandemic. Well, the bail schedule's statute in California dates to 55 00:03:52.639 --> 00:03:57.560 the early nineties, I believe, and requires a bail schedule and has various 56 00:03:57.599 --> 00:04:00.360 rules on when the judges can go up and down with the whole that we 57 00:04:00.360 --> 00:04:03.199 have the uniform bail schedule right, that we treat people equally is the reason 58 00:04:03.199 --> 00:04:04.960 that we have a bail schedule. And now we're saying, oh, it's 59 00:04:05.039 --> 00:04:09.159 unconstitutional because people can't afford it. Well, that's really not why it was 60 00:04:09.199 --> 00:04:13.159 created. It was created to very much avoid that problem. But the big 61 00:04:13.199 --> 00:04:15.240 problem now is you know, what are we going to do with all these 62 00:04:15.240 --> 00:04:18.319 people on zero bail when they continue to reoffend and they know those loopholes in 63 00:04:18.360 --> 00:04:20.439 the system, they're going to exploit it. And that's what we've seen in 64 00:04:20.480 --> 00:04:26.519 other places where we make the rules beforehand rather than leave it up to judges. 65 00:04:27.040 --> 00:04:30.000 Yeah, I know, having a bail set. Yeah. The leader 66 00:04:30.160 --> 00:04:35.040 of the Conservative Party in Canada was questioned about that and he said, you've 67 00:04:35.079 --> 00:04:38.079 got to be kidding, you know. They said, well, can you 68 00:04:38.160 --> 00:04:43.439 prove that people on being released early without bail has anything to do? And 69 00:04:43.439 --> 00:04:46.120 he goes, yeah, we've had situations where people come out and they would 70 00:04:46.319 --> 00:04:49.680 be caught, released and then go back and commit another crime, caught and 71 00:04:49.759 --> 00:04:54.399 released, and do that several times a day. And he said, and 72 00:04:54.480 --> 00:04:59.120 it's a very small group of people that just keep repeating offenses like this. 73 00:04:59.160 --> 00:05:00.959 And the person says, yeah, but can you prove and he goes, 74 00:05:00.079 --> 00:05:02.480 are you serious? Were you listening to what I had to say? I 75 00:05:02.519 --> 00:05:05.680 mean, this is the insanity of this. Now you point out this exact 76 00:05:05.720 --> 00:05:11.079 bail schedule goes back to the nineties, but of course bail has been around, 77 00:05:11.160 --> 00:05:16.600 it's nothing new. It's been around since the creation of our form of 78 00:05:16.639 --> 00:05:19.120 government. That's always been with us, right, tell us a little bit 79 00:05:19.160 --> 00:05:23.920 about the purpose of bail and a little bit about the history of it. 80 00:05:25.240 --> 00:05:28.439 I mean, the right to bail dates to pre Magna carta. There's a 81 00:05:28.439 --> 00:05:30.279 lot through English history that I'm not going to get into, the Five Nights 82 00:05:30.319 --> 00:05:33.319 case, Lord Coke, all that sort of thing, But the essence of 83 00:05:33.399 --> 00:05:39.240 it was that the government cannot imprison you, that you had to submit security 84 00:05:39.279 --> 00:05:41.920 for your appearance. And really in this country it was the right to bail 85 00:05:41.959 --> 00:05:46.720 by sufficient sureties, which was the original sort of Pennsylvania Massachusetts constitution. And 86 00:05:46.759 --> 00:05:50.600 really what it means is the third party putting up a financial guarantee as part 87 00:05:50.639 --> 00:05:55.120 of the common law. With that meant was you had arrest powers and you 88 00:05:55.160 --> 00:05:58.000 could go across state lines. Supreme Court, I believe, in the nineteenth 89 00:05:58.079 --> 00:06:01.399 century called it the option to select the jailer of ones choosing, and I 90 00:06:01.480 --> 00:06:04.279 believe this room Court also said we are a friend. The bail industry is 91 00:06:04.319 --> 00:06:09.160 a friend to the friendless in a way when you need a friend and you 92 00:06:09.600 --> 00:06:14.759 don't have one. And so obviously there was a divergence in the late nineteenth 93 00:06:14.839 --> 00:06:17.519 early actually early a twentieth century, when the English Supreme Court said it was 94 00:06:17.560 --> 00:06:24.040 against public policy to have compensated sureties, in other words, bail agents that 95 00:06:24.279 --> 00:06:29.839 take a fee to act as your personal surety, whereas Justice Oliver Wende Holmes 96 00:06:29.839 --> 00:06:31.279 of course said, no, you can do that in states can regulate that, 97 00:06:31.319 --> 00:06:35.000 and so forty six states have said that you could have commercial suurities in 98 00:06:35.000 --> 00:06:40.920 the United States. And so really it is an ancient form of our due 99 00:06:40.920 --> 00:06:46.680 process has been around for centuries, and so what is new is the idea 100 00:06:46.680 --> 00:06:53.240 that we don't have any bail. And again, what is the if you 101 00:06:53.279 --> 00:06:56.920 don't have a situation where you have as you point out, do you choose 102 00:06:56.920 --> 00:07:00.040 your own jailer, which says that you're going to be back for the trial 103 00:07:00.560 --> 00:07:02.759 and they're going to keep an eye on you that type of thing. What 104 00:07:02.800 --> 00:07:09.439 we see is what is happening in La and in San Francisco and the rest 105 00:07:09.439 --> 00:07:13.439 of these people. It is total anarchy, isn't it. Yeah, it's 106 00:07:13.560 --> 00:07:15.399 end money bail. And then what really there's only two options. We go 107 00:07:15.480 --> 00:07:20.079 to the federal system of detaining through out of four defendants using what I would 108 00:07:20.120 --> 00:07:24.680 consider to be an arbitrary power that we really didn't have, or we say 109 00:07:24.720 --> 00:07:27.720 you get a zero bail and we just release people that are completely dangerous. 110 00:07:27.759 --> 00:07:30.079 And so in Californi, for example, the measure of staying in jail, 111 00:07:30.079 --> 00:07:33.680 and this is how bail protects public safety, so to speak, is the 112 00:07:33.720 --> 00:07:38.079 measure of getting in or out of jail is putting up the security. If 113 00:07:38.079 --> 00:07:40.680 you don't put up the security, you stay in jail, which means the 114 00:07:40.720 --> 00:07:43.720 rate of new crime is zero. So that protects public safety. That's what 115 00:07:43.759 --> 00:07:46.800 people aren't taking into account here, and that's their whole argument is we don't 116 00:07:46.839 --> 00:07:49.000 think those people should stay in jail because they can't afford it. Well, 117 00:07:49.040 --> 00:07:54.839 in reality, they can't find somebody in the community to put up for them 118 00:07:55.319 --> 00:07:58.120 to make the guarantee. That's what we're talking about. And we say, 119 00:07:58.199 --> 00:08:01.639 in our tradition, well then we should not release them because they're not going 120 00:08:01.680 --> 00:08:05.759 to come answer for the crime. And so that's the distinction. And those 121 00:08:05.759 --> 00:08:07.240 people that stay in jail have a zero new crime rate other than the crimes 122 00:08:07.240 --> 00:08:11.079 that commit in jail, and that should be factored into all of this, 123 00:08:11.160 --> 00:08:13.800 and fortunately it's generally not. We just say, well, you put them 124 00:08:13.800 --> 00:08:16.680 on bail, they still commit new crimes, that's true, But when they 125 00:08:16.720 --> 00:08:20.759 don't, when they stay in jail pending trial, they don't commit new crimes. 126 00:08:20.040 --> 00:08:26.519 Now at your website, they're the American Bail Coalition. You address some 127 00:08:26.560 --> 00:08:31.199 of the facts and myths about bail, and the first one that you address 128 00:08:31.360 --> 00:08:35.279 is kind of what you just tangentially touched on there. The people, poor 129 00:08:35.320 --> 00:08:41.000 people are languishing in jail for the sole reason that they cannot afford a bail 130 00:08:41.080 --> 00:08:45.080 bond. And so what would you say in terms of that, And you 131 00:08:45.159 --> 00:08:48.240 have a couple of points so that you point out, but tell the audience 132 00:08:48.840 --> 00:08:54.639 why that is. It's not about poor people languishing in jail. Well, 133 00:08:54.720 --> 00:08:58.559 judges are tasks under state and federal law with adjusting the bails based on people's 134 00:08:58.559 --> 00:09:03.480 income, and that's what's supposed to happen. I think what we've seen and 135 00:09:03.519 --> 00:09:05.879 what has been a problem, and where the other side has a point, 136 00:09:05.919 --> 00:09:09.519 so I'll address their argument is that we've had bad due process in this country 137 00:09:09.559 --> 00:09:13.440 when it comes to bail. In other words, you put in jail, 138 00:09:13.600 --> 00:09:16.039 you cannot afford it, and you're there really because the bill was set too 139 00:09:16.080 --> 00:09:20.559 high arbitrarily by a bail schedule and it needs to be adjusted, and then 140 00:09:20.600 --> 00:09:22.759 you sit there for a week. In some cases, we've seen in some 141 00:09:22.879 --> 00:09:26.159 jurisdictions people sat there for thirty days to see a judge to have a bail 142 00:09:26.200 --> 00:09:30.240 adjusted. Now that becomes a problem, but that's a problem of due process, 143 00:09:30.360 --> 00:09:33.639 and I think that has been improved. But generally, what we see 144 00:09:33.000 --> 00:09:37.320 is that people who are stuck in jail have multiple reasons for that, and 145 00:09:37.360 --> 00:09:41.879 it's usually repeat crimes where the judges have set the bills, they've burned all 146 00:09:41.919 --> 00:09:45.159 their friends and ties to the community. In other words, nobody believes that 147 00:09:45.159 --> 00:09:46.799 they're going to show up. Nobody believes that they're going to show up to 148 00:09:46.840 --> 00:09:50.200 sentencing, nobody believes that they're going to go to prison if they get sentenced, 149 00:09:50.200 --> 00:09:52.480 and so they're not willing to put up with them. And so that's 150 00:09:52.519 --> 00:09:54.639 generally where we see that. But I do agree that, you know, 151 00:09:54.759 --> 00:09:58.279 some of these lower level charges that we've seen, you know, sleeping on 152 00:09:58.320 --> 00:10:01.279 the park benches and stuff, we had a lot of arbitrary miss in the 153 00:10:01.279 --> 00:10:03.759 system that needed to be fixed. But on the top end, you know, 154 00:10:03.840 --> 00:10:07.000 felons repeat felons. I mean, these people are multiple time violent criminals. 155 00:10:07.039 --> 00:10:11.440 The average person doesn't post bail in this country has ten prior strikes or 156 00:10:11.440 --> 00:10:15.559 more, prior felony convictions, prior misdemeanor convictions, prior failures to show up 157 00:10:15.600 --> 00:10:18.000 in court, so they're not you know, we rarely see a first timer 158 00:10:18.039 --> 00:10:22.600 that can't afford bail, that's stuck in jail. And so in a sense, 159 00:10:22.720 --> 00:10:28.559 what it is is a risk assessment on this person not showing up or 160 00:10:28.639 --> 00:10:31.039 committing more crimes while they're out. That's one of the things that drives the 161 00:10:31.080 --> 00:10:35.960 amount of the bond, and as you point out, it should be adjusted 162 00:10:37.159 --> 00:10:39.440 also for their income. But it's kind of a thing that you know, 163 00:10:39.480 --> 00:10:43.639 says this is a seriousness of the crime and the risk of letting this person 164 00:10:43.720 --> 00:10:48.519 out, and so if that is judged by the judge and by the people 165 00:10:48.559 --> 00:10:52.639 who might produce the bail as being too much of a risk that person stays 166 00:10:52.679 --> 00:10:56.519 in jail. That's essentially what's going on with it, isn't that is And 167 00:10:56.559 --> 00:11:01.279 really it's not a scientific or calculated there's not a calculator to do this, 168 00:11:01.399 --> 00:11:03.720 right. You're taking in the interests of the people who're prosecuting the victim of 169 00:11:03.759 --> 00:11:07.399 the crime. Under Marci's Law, and the state of California and other states 170 00:11:07.440 --> 00:11:11.000 has a right to be heard on deil of what they think the bill should 171 00:11:11.000 --> 00:11:13.320 be. So the judges have to balance all these factors, like you said, 172 00:11:13.360 --> 00:11:16.600 the crime, the prior record of failing to appear, you know, 173 00:11:16.639 --> 00:11:20.200 all these various factors, ties to the community, whether they're employed, you 174 00:11:20.240 --> 00:11:22.639 know, whether they live in another state. All this sort of thing all 175 00:11:22.639 --> 00:11:26.679 goes into the calculus under various state statutes. So you're right, and that 176 00:11:26.200 --> 00:11:31.399 is not a precise balance, and some people are uncomfortable with that, but 177 00:11:31.399 --> 00:11:35.000 that's the process that we have in this and many other parts of our criminal 178 00:11:35.080 --> 00:11:39.159 law. Yes. Yes, Now you're with the American Bail Coalition and is 179 00:11:39.440 --> 00:11:43.159 the bail industry, And as part of your facts and myths here you say, 180 00:11:43.200 --> 00:11:46.519 well, one of the things that has been said about this is that 181 00:11:46.559 --> 00:11:52.679 the bail industry is completely unregulated and takes advantage of consumers. Give your side 182 00:11:52.720 --> 00:11:58.480 of the story. Well, we're regulated by departments of insurance. We're required 183 00:11:58.519 --> 00:12:03.840 to be regulated as insurance It's companies by the Comprehensive Crime Control Act, and 184 00:12:03.879 --> 00:12:07.320 so we're regulated heavily in all the states that we do business. There's been 185 00:12:07.679 --> 00:12:11.840 you know, lawsuits over you know, consumer protection laws being applied, and 186 00:12:11.840 --> 00:12:15.759 I would just say they're continuing to be applied in various states, and so 187 00:12:16.360 --> 00:12:20.200 you know, I think the laws are enforced on bail agency. The other 188 00:12:20.240 --> 00:12:22.759 thing that I've been working on over the last seven or eight years in this 189 00:12:22.879 --> 00:12:28.000 role is regulating bail recovery agents. And there are still some states, like 190 00:12:28.000 --> 00:12:31.480 my home state of Colorado, where you could just announce that you're a bail 191 00:12:31.559 --> 00:12:35.080 recovery agent, which means you're being transferred to rest powers and you have no 192 00:12:35.240 --> 00:12:39.799 regulatory oversight by the state. So our policy has been if you have arrest 193 00:12:39.840 --> 00:12:43.200 powers, you should probably be regulated by somebody, and you know, we 194 00:12:43.240 --> 00:12:46.320 think department state, departments of insurance, but other states do it differently and 195 00:12:46.440 --> 00:12:50.480 use sort of the same bodies that regulate police officers arrest powers to impost some 196 00:12:50.519 --> 00:12:54.320 training and other requirements. But overall, by and large, you know, 197 00:12:54.360 --> 00:12:56.840 we're regulated fairly heavily other than what I would say, that little area that 198 00:12:56.879 --> 00:13:01.440 we're trying to improve. And of course the powers, because of this person's 199 00:13:01.440 --> 00:13:05.559 skips, they've got to be able to arrest this person and bring them back 200 00:13:05.879 --> 00:13:11.200 to me. It seems like a very ancient perspective of you know, things 201 00:13:11.200 --> 00:13:15.759 like putting like marks of retainer on you, deputizing people to go get something 202 00:13:15.799 --> 00:13:18.840 done because people understood that that might be a more efficient way to do it 203 00:13:20.399 --> 00:13:24.080 rather than have a large bureaucracy is to farm out some of these things. 204 00:13:24.960 --> 00:13:28.039 One of the things that the bail industry is accused of, and the whole 205 00:13:28.120 --> 00:13:33.039 bail process is accused of. Of course, this is an accusation that is 206 00:13:33.200 --> 00:13:35.039 thrown against everybody at one point at a time. If they don't like what 207 00:13:35.039 --> 00:13:41.440 you're doing, they call you racist. So this is the accusation of racism. 208 00:13:41.480 --> 00:13:46.440 Talk about that a little bit, well, at least from my perspective, 209 00:13:46.480 --> 00:13:50.519 from the corporations insurance at under red bail, we cut through all that. 210 00:13:50.200 --> 00:13:56.159 We allow people in whatever communities that want to become mail agents and service 211 00:13:56.159 --> 00:13:58.480 personal sureties to be able to do that. And I think without that level 212 00:13:58.480 --> 00:14:01.679 of national iime writing, it would it would make it harder for there to 213 00:14:01.720 --> 00:14:07.360 be people to come into the bill industry other than you know, longtime property 214 00:14:07.399 --> 00:14:13.120 owners in those communities. Two is largely the system, and I'm not going 215 00:14:13.159 --> 00:14:16.080 to get into the reasons why it has disparities in it. If you just 216 00:14:16.080 --> 00:14:20.480 look at the raw numbers in terms of population versus the amount of criminal justice 217 00:14:20.480 --> 00:14:24.120 involved. You know, individuals that are minorities, and so we serve those 218 00:14:24.120 --> 00:14:30.639 communities. We allow them to get out of jail as appropriate, secure their 219 00:14:30.639 --> 00:14:33.120 release and go through the process. And that's a that's an important thing, 220 00:14:33.159 --> 00:14:35.320 as we know for various reasons. You know, they put on the better 221 00:14:35.360 --> 00:14:39.559 defense, they get their acts together in terms of probation and trying to argue 222 00:14:39.559 --> 00:14:43.679 for a better sentence. I mean generally that just things tend to work better 223 00:14:43.279 --> 00:14:46.919 if they're able to secure their release and get out. Yes. Yes, 224 00:14:46.279 --> 00:14:50.480 let's talk a little bit about how this has started to come about, and 225 00:14:50.519 --> 00:14:58.320 this is something that has been changing over the last several years. Chris Christy 226 00:14:58.759 --> 00:15:01.360 did one of the first movements of this when he was governor in New Jersey. 227 00:15:01.399 --> 00:15:07.159 He worked with Democrats to essentially did he completely remove bail at that point 228 00:15:07.159 --> 00:15:09.399 in time, But that was one of the first places where we saw this, 229 00:15:09.480 --> 00:15:13.679 wasn't it in New Jersey? It really was, and that was kind 230 00:15:13.720 --> 00:15:18.000 of his pivot to the federal system. So to go kind of a little 231 00:15:18.039 --> 00:15:20.000 bit back in time, is that there was bail in the federal system till 232 00:15:20.120 --> 00:15:24.799 the Bail Reform Act of nineteen eighty four, when we came up with a 233 00:15:24.840 --> 00:15:28.480 new idea, which is, we'll just lock up the people that we labeled 234 00:15:28.519 --> 00:15:33.799 dangerous and we'll let everybody else out and supervise the amusing federal pre trial services 235 00:15:33.840 --> 00:15:35.919 and the US Marshall Service to arrest them. That was the federal model, 236 00:15:37.360 --> 00:15:41.120 largely thought unconstitutional because we had this right to bail, but the US Supreme 237 00:15:41.159 --> 00:15:45.879 Court decided otherwise, and so that was the movement in New Jersey. I 238 00:15:45.879 --> 00:15:48.279 would I would think of it more as a hybrid system where we wanted to 239 00:15:48.279 --> 00:15:52.159 lock up more and deny bail the more people say you're just too dangerousness to 240 00:15:52.200 --> 00:15:54.559 get any bail, and that we were going to not require bail on some 241 00:15:54.600 --> 00:15:58.120 of these people and give more summonses to some of these people on the lower 242 00:15:58.200 --> 00:16:00.919 end, and we'd still have like a shrinking middle of bail in the middle. 243 00:16:02.320 --> 00:16:04.039 But as the system was implemented, I think the Chief Justice really just 244 00:16:04.080 --> 00:16:08.039 wanted to get rid of bail, and so you really have seen it largely 245 00:16:08.080 --> 00:16:14.039 eliminated and we go to this system of just you're detained and you're there at 246 00:16:14.039 --> 00:16:18.960 the will in jail period pending some trial I with know certainty of one that's 247 00:16:18.000 --> 00:16:21.399 going to be or you get released on your own recognissance. And in the 248 00:16:21.440 --> 00:16:23.879 case of New Jersey, there's very little oversight and supervision when that happens. 249 00:16:25.559 --> 00:16:27.360 And so you see crazy results under that. You see and you see an 250 00:16:27.399 --> 00:16:33.360 expansion of the government wanting to detain because judges can't do bail, and so 251 00:16:33.440 --> 00:16:37.080 you see a lot of that, and you've seen the percentage of motions filing 252 00:16:38.120 --> 00:16:41.559 for detention increasing, and so you know, it's really a question of whether 253 00:16:41.600 --> 00:16:47.279 that's a system long term. Is that better you know, for the half 254 00:16:47.320 --> 00:16:49.559 billion dollars you know they've spent on it, We don't think so. We 255 00:16:49.600 --> 00:16:53.720 think you could have just done summonses and kind of targeted these repeat offenders without 256 00:16:53.759 --> 00:16:56.440 having to spend all this money. So I'm not sure it's really a better 257 00:16:56.480 --> 00:17:00.600 system. But that's kind of where the public policy to be it lies right 258 00:17:00.639 --> 00:17:03.079 now is to end cash bail and then what right, what do we do 259 00:17:03.119 --> 00:17:07.839 then? And none of the alternatives really seemed to be much better than the 260 00:17:07.880 --> 00:17:10.839 constitutional framework we've been working in, you know, for four hundred years. 261 00:17:11.000 --> 00:17:14.599 Yeah, and just keep people in jail longer, have more overcrowded prisons, 262 00:17:14.799 --> 00:17:18.480 and of course the whole idea. You talk a great deal on your website 263 00:17:18.920 --> 00:17:22.400 about reform for a speedy trial. I think a lot of people who watch 264 00:17:22.480 --> 00:17:26.839 this program, we're looking at this and thinking about the j six people. 265 00:17:26.880 --> 00:17:30.160 You know, the January six ers, very few of them in jail for 266 00:17:30.240 --> 00:17:36.559 any accusation of a violent crime, for example, and yet not given a 267 00:17:36.599 --> 00:17:41.599 speedy trial under you know, difficult conditions and awaiting trial for a couple of 268 00:17:41.720 --> 00:17:45.880 years, two or three years. Many of these people talk a little bit 269 00:17:45.920 --> 00:17:49.519 about the speedy trial aspect of this. Well, you just made the argument 270 00:17:49.559 --> 00:17:53.640 for a returning USB Salerno, which is since nineteen eighty four. You know, 271 00:17:53.680 --> 00:17:56.799 in nineteen eighty four, if January sixth would have happened one, there 272 00:17:56.799 --> 00:18:00.920 would have been bail, so they would have had a seventy six percent chance 273 00:18:00.960 --> 00:18:03.000 of getting out, not a seventy six percent chance of staying in. So 274 00:18:03.039 --> 00:18:07.400 we flip flopped that since nineteen eighty four. The other thing that's been unbelievable, 275 00:18:07.440 --> 00:18:12.559 that a report called Freedom Denied from the University of Chicago pointed out recently, 276 00:18:12.759 --> 00:18:15.920 is that the speedy trial time when there was bail in the federal system 277 00:18:17.079 --> 00:18:19.839 was sixty days was the average felony. That's up to three hundred and sixty 278 00:18:19.920 --> 00:18:26.839 days now. So what's happened is and as Justice Thirdgod Marshall predicted, when 279 00:18:26.839 --> 00:18:30.880 we take a shortcut to a conviction, there's no pressure to do anything, 280 00:18:30.119 --> 00:18:33.480 and that's what we've done. If the prosecution knows you're in jail, then 281 00:18:33.559 --> 00:18:38.400 every incentive to go as flow as possible and delay everything because they've got you 282 00:18:38.799 --> 00:18:41.960 and they know you're incarcerated. You're not going to commit a new crime. 283 00:18:42.000 --> 00:18:45.319 They've done their job, and so that's what we've seen over time, and 284 00:18:45.359 --> 00:18:49.440 that has had a devastating impact on civil rights and also unnecessary pre trial incarceration. 285 00:18:49.839 --> 00:18:52.839 If we can try them in nineteen eighty four and sixty days with all 286 00:18:52.839 --> 00:18:56.599 this new fangle technology, exchange of electronic discovery, all this stuff that we 287 00:18:56.680 --> 00:19:00.200 say should improve it, why has it gotten so long? And really it's 288 00:19:00.319 --> 00:19:03.920 just lack of incentive. If the prosecutor knew that the bill industry could come 289 00:19:03.960 --> 00:19:07.039 bail out fifty percent of them, they'd be in a hurry to convict them. 290 00:19:07.079 --> 00:19:11.519 So we're seeing that around the country as that you know, in South 291 00:19:11.519 --> 00:19:15.079 Carolina, for example, the average felony cases two years, you know, 292 00:19:15.160 --> 00:19:18.559 and obviously the bail issue becomes a lot bigger when you're gonna be sitting there 293 00:19:18.599 --> 00:19:22.640 for two years. And so speedy trial is the number one way to reduce 294 00:19:23.119 --> 00:19:26.880 pre trial unnecessary pre trial incarceration. The other example I'll give is Michigan. 295 00:19:27.319 --> 00:19:32.440 You know, eighteen percent of defendants pre trial caused eighty two percent of jail 296 00:19:32.480 --> 00:19:34.480 costs. And those are people that stay thirty days and longer. So you 297 00:19:34.480 --> 00:19:37.640 can do all the bail reform you want, but if you're not hitting the 298 00:19:37.680 --> 00:19:40.720 eighty two percent, what are you really doing? And if you could cut 299 00:19:40.920 --> 00:19:42.559 that amount of time in half, you would cut the amount that they have 300 00:19:42.559 --> 00:19:45.720 to fit in jail pending this outcome in half. Would get them on a 301 00:19:45.799 --> 00:19:48.200 probation, get them on the treatment, or get them in prison where they 302 00:19:48.200 --> 00:19:52.359 belong. We have to get to this fork in the road, and the 303 00:19:52.359 --> 00:19:56.799 more that we you know, don't focus on speedy trial and allow us to 304 00:19:56.799 --> 00:19:59.920 happen we just take a shortcut to conviction. And then everybody's arguing, oh, 305 00:20:00.160 --> 00:20:02.759 preventive attention, we need to lock more people up. Yeah, because 306 00:20:03.160 --> 00:20:04.920 we never get there, and we need to get there. That's what this 307 00:20:06.039 --> 00:20:08.440 is all about. And that is what deters crime. You know, certainly 308 00:20:08.480 --> 00:20:11.480 getting caught, swiftness of punishment, and that's basic, and that goes back 309 00:20:11.480 --> 00:20:15.039 three hundred years, right, and that's what we need to focus on. 310 00:20:15.200 --> 00:20:17.279 And so the two extremes that we've got, and we don't like either one 311 00:20:17.279 --> 00:20:21.119 of those. You either just you know, immediately release these shoplifters, these 312 00:20:21.200 --> 00:20:23.759 shoplifter gangs. You just turn them right back out, or you lock people 313 00:20:23.880 --> 00:20:26.400 up for instead of a couple of months, you lock them up for a 314 00:20:26.440 --> 00:20:30.559 year or maybe two years, or as we saw in the case of the 315 00:20:30.640 --> 00:20:33.640 J sixers, lock them up for three years, not accused of a violent 316 00:20:33.720 --> 00:20:37.400 crime. And I'm just curious, maybe you know, maybe you don't know 317 00:20:37.680 --> 00:20:41.559 what was the argument for keeping these people locked up for that long time. 318 00:20:41.640 --> 00:20:45.720 Was it that they could not get to a would not give them Why would 319 00:20:45.759 --> 00:20:48.519 they not give them bail? Do they just not have that in the district 320 00:20:48.559 --> 00:20:52.920 of Columbia or were they saying they were too dangerous even though they were non 321 00:20:52.960 --> 00:20:56.759 violent? Well, do you know what the justification was for keeping those people 322 00:20:56.799 --> 00:21:00.720 locked up for three years? In general, there was a statutory presumption that 323 00:21:00.759 --> 00:21:03.680 they stay in jail, just under the federal statute because of the level of 324 00:21:03.720 --> 00:21:07.680 the crime, and the defendant has to rebut that presumption, that's how heavy 325 00:21:07.680 --> 00:21:10.079 it is. You know, you've got three out of four defendants in any 326 00:21:10.200 --> 00:21:14.119 federal criminal case stay in So it didn't surprise me at all that people charged 327 00:21:14.160 --> 00:21:18.759 with insurrection related crimes like this, even if they had no background, would 328 00:21:18.799 --> 00:21:22.000 face detention. And that's wrong. And here's the reality. You know, 329 00:21:22.559 --> 00:21:26.119 the reason there is bail is to challenge arbitrary preventive attention. The community can 330 00:21:26.160 --> 00:21:30.200 say enough, you've gone too far. We're bailing these people out. Now. 331 00:21:30.200 --> 00:21:33.759 That doesn't exonerate them, but it sends a message to the government that 332 00:21:33.799 --> 00:21:36.440 you've gone too far. And that's why that extreme, I think is bad. 333 00:21:36.519 --> 00:21:37.880 You know, the other extremes, just as arbitrary, is that we 334 00:21:37.960 --> 00:21:41.240 say, well, you know, basic shoplifting, okay, then that's fine. 335 00:21:41.240 --> 00:21:45.200 Well what if it is the fifteenth time, what if it is special 336 00:21:45.240 --> 00:21:48.039 circumstances where they use the gun or there's something that the statute didn't anticipate that 337 00:21:48.079 --> 00:21:52.519 we want judges to do, So it becomes arbitrary. Go into both both 338 00:21:52.559 --> 00:21:56.839 ways. And that's why this history of bail and securing your release it has 339 00:21:56.920 --> 00:22:00.920 been kind of the best way to draw this balance and let you just Unfortunately, 340 00:22:00.960 --> 00:22:04.079 you know, people say, you know, we need you judicial discretion, 341 00:22:04.200 --> 00:22:07.000 and everybody loves that until they lose. But that's that's the best system 342 00:22:07.039 --> 00:22:10.839 that we have and we and you know, either side that just sends up 343 00:22:10.839 --> 00:22:14.880 being too arbitrary. I think give us an idea of where this issue is 344 00:22:14.920 --> 00:22:18.039 now. You know, we saw this several years ago in New Jersey and 345 00:22:18.079 --> 00:22:22.279 of course have made the Democrat station at California, Illinois, Connecticut, other 346 00:22:22.319 --> 00:22:26.319 things like that. You know, what is the general situation? What is 347 00:22:26.359 --> 00:22:32.720 the Is this something that is rapidly spreading or is this something that is rapidly 348 00:22:32.759 --> 00:22:38.279 spreading in the heavily democratic states. Well, I would say that what happened 349 00:22:38.279 --> 00:22:41.799 in New York, the three time rollback by two governors of the original law 350 00:22:42.440 --> 00:22:45.759 has really sort of stalled out this idea that this is some successful solution. 351 00:22:47.839 --> 00:22:49.519 I think we are seeing it in two places remaining, which is sort of 352 00:22:49.559 --> 00:22:55.799 Los Angeles and and what just happened in Illinois with the Illinois Supreme Court affirming 353 00:22:55.799 --> 00:23:00.559 the Safety Act, which is basically a smaller version of a new In other 354 00:23:00.599 --> 00:23:03.559 words, we take New Jersey and we say the list of crimes are going 355 00:23:03.599 --> 00:23:07.240 to be a lot smaller than what we have in New Jersey. So I 356 00:23:07.279 --> 00:23:11.880 think, you know, there's been some conversations in other states about you know, 357 00:23:11.920 --> 00:23:15.279 going more to detention policies, but not you know, necessarily as the 358 00:23:15.319 --> 00:23:18.440 reason to make it more fair, but to crack down on repeat criminals. 359 00:23:18.480 --> 00:23:22.680 So we've seen that in places like South Carolina, Tennessee, and other particularly 360 00:23:22.720 --> 00:23:27.599 states in the South like Florida that are seeking to crack down more on repeat 361 00:23:27.960 --> 00:23:33.680 defendants. So as you look at this, how would you say the momentum 362 00:23:33.799 --> 00:23:37.519 is is a momentum swinging back in your favor, then I'd say so. 363 00:23:37.599 --> 00:23:41.680 I think the idea that we can just wholesale allow a bunch of people to 364 00:23:42.119 --> 00:23:45.960 get a jail free card is going to be good public policy is sort of 365 00:23:47.079 --> 00:23:49.839 like you know, saying defund the police was going to work. I mean, 366 00:23:49.839 --> 00:23:55.000 I just violated the basic common sense doctrine and basically it violated the whole 367 00:23:55.039 --> 00:23:57.720 doctrine of what I was saying of criminal deterrence. We can't prosecute and incarcerate 368 00:23:57.759 --> 00:24:02.160 everybody. We have to send a message that you are going to and conduce 369 00:24:02.240 --> 00:24:04.440 people that we are going to get them if they commit crimes. And as 370 00:24:04.440 --> 00:24:07.759 soon as we lose that and we have said well you don't have to respect 371 00:24:07.759 --> 00:24:11.079 the police will then look where we are. So that's the policies we need 372 00:24:11.079 --> 00:24:15.079 to go and bail is part and parcel of that, which is you could 373 00:24:15.119 --> 00:24:17.680 have bail set, you could stay in jail. We just won't know until 374 00:24:17.720 --> 00:24:19.960 you get there. And that's the message that we need to have. I 375 00:24:22.079 --> 00:24:25.000 think it is swinging towards your direction because people have seen what is happening in 376 00:24:25.039 --> 00:24:30.000 California. It is absolute total anarchy, and you know, well, these 377 00:24:30.000 --> 00:24:33.880 people are non violent, so let's just let them go. People realize, 378 00:24:33.880 --> 00:24:37.039 they're starting to realize now exactly how unworkable this is. So I think it's 379 00:24:37.079 --> 00:24:40.400 very important. I think it's one of the fundamental things in terms of do 380 00:24:40.519 --> 00:24:42.039 process. You know, we have these things that are there, things like 381 00:24:42.119 --> 00:24:47.319 try by jury, habeas corpus bail. These are tried and true that we're 382 00:24:47.359 --> 00:24:49.720 there for a reason, and it is very foolish to discard these things, 383 00:24:51.200 --> 00:24:56.519 and we do it and eventually discover why they were there and now we can 384 00:24:56.559 --> 00:25:00.160 see California why they were there all along. Thank you so much for joining 385 00:25:00.200 --> 00:25:04.519 us, sir. And again it is the American Bail Coalition, and we 386 00:25:04.599 --> 00:25:10.599 have to it's a very important what is happening to our justice system and how 387 00:25:10.640 --> 00:25:14.599 it is being ripped down at the foundation, and I think this is just 388 00:25:14.599 --> 00:25:18.799 one more of the things that we need to reclaim and understand the true importance 389 00:25:18.839 --> 00:25:19.799 of it and why it is there. You know, don't tear down the 390 00:25:19.799 --> 00:25:22.480 fence if you don't understand why it was put up in the first place. 391 00:25:22.640 --> 00:25:26.799 Thank you so much for joining us and explaining that. Thank you you got 392 00:25:26.799 --> 00:25:30.240 it was a pleasure. Thank you. We're going to be right back. 393 00:25:30.279 --> 00:26:06.799 Folks, to take a quick break and we'll be right back. You're listening 394 00:26:06.839 --> 00:26:07.319 to the David Night Show.