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.