How Cash Bail Undermines the Promise of Equal Treatment Under the Law

There's a guy who I hope someday will get to be on your show named Alec Karakatsanis, who's the author of a book called Usual Cruelty, which is like my Bible now. And it is Usual Cruelty by Alec A.L.E.C. Karakatsanis. He's got an organization called Civil Rights Corps, and he's been suing cities and counties all over the country to eliminate cash bail, because cash bail is at the root of a lot of these problems. How so? So, money bail has existed since, you know, I don't know, it was a thousand years since bail was invented, whatever the hell it was, a long time ago. But bail historically was an unsecured, was an unsecured bond, right? Which meant that they figured out they wanted to charge people if they didn't show up for trial, right? So, but that what that meant is if you were arrested and you were supposed to show up in court, if you didn't show up, they would send you a bill, right? And then in 1899, it changed. And people realized it actually started in San Francisco, strangely enough, which is now actually leading to charge in the other direction. But in 1899, they decided to start charging people up front. So you had to post bail money to be free until your trial. Now, this obviously affected one group of people, poor people, right? Because, and you know, we always see the mug shots of celebrities, right? When they're arrested and they're smiling, right? Because they, their lawyers waiting outside to take them to a lobster dinner or whatever the hell they're going to go do. And what, what happened is that soon enough, and Alec taught me a lot of this stuff, soon enough, it became clear that this could be an incredible profit center, right? That charging people for their own freedom, it's a bill you have, you can't afford not to pay. But if you can't afford to pay it, you go to jail. So then it emerged this bail bonds industry, right, which is now a multi-billion dollar industry. And how that works is, if you're poor, and you can't afford to post bail for yourself, someone will come along and say, if you give me 10% of the money, non-refundable, whether you're innocent, guilty, whether your charges are dropped in an hour, it doesn't matter. You give me that money, I keep it, I post the rest, which usually they don't even do, it's just an understanding they have. And you can go home. Now, if you don't do that, think about the consequences, right? So you're picked up for anything, shoplifting, could be mistaken identity, could be any crime at all, any or any minor thing, misdemeanors that make up a huge percentage of the jail population. Most commonly, it's just driving on a suspended license. That's the most common cause of arrest, I think, in most places in America, driving on a suspended license. And they're going to put you in a jail cell. They're going to deprive you of contact with your family, of your ability to work, of your ability to take a walk, of your ability to avoid violence that may occur to you when you're in that cell, of all different types. And your very life will be at risk. And so if you don't have the money to avoid that, you're now going to be subjected to being in jail. We have about 450,000 people in jail in America right now as we're sitting here. We don't know if they did anything or not. They haven't been tried. 80% of people in jail have never had a trial yet. And they could sit there for a week, a month, a year, several years, awaiting trial. And that's why most of them will plead guilty within about 3.2 days is the average time someone will plead guilty if they're in jail. Whereas if they're out, and think about this too, right? If you're out, you don't plead guilty. You wait and you have your day in court. And it also deprives you of the ability to defend yourself, right? So let's say you're accused of attacking somebody, right? And beating somebody, whatever, whatever it might be, right? And you're in jail because you can't post bail. You can't meet with your lawyer. They don't have time to come visit you in jail. You can't get them on the phone readily. You can't take your lawyer to the scene of the crime to show that you couldn't have been there because, or whatever, or the witness couldn't have seen you because the lights are, whatever it is, you have no ability to mount an effective defense if you're in jail, which is why 96, 97% of, well, now I'm talking felonies, but 96% of felonies of conviction in this country are a result of guilty pleas because people realize they can't fight it and they can't afford to sit in jail because they could lose their job, they could lose their home, they could lose their family if they don't, if they don't either, either put up the money, which they don't have, or, or plead guilty. So this is, this is a problem that is being addressed. Like I said, Alec one has been winning lawsuits all over the country because it's a violation of the sixth and the 14th amendment. You can't call it equal protection if two different people are charged with the exact same thing, but the one with money goes home and the one without money goes to jail. That is such a beautiful way to put it and so, so clear because I've been seeing people talk about different progressives that want to get rid of cash bail and how ridiculous that is. And what you're saying makes total sense and I've never seen it laid out like that before. And I didn't know that there were that many people that are in jail for things and they can't post bail because they don't have the money and so they just have to wait for trial and what percentage of them did you say? What percentage of them are, are what? What percentage of people that get arrested can't post bail? Oh, I don't actually know that percentage, but I think it's, it's very high because most people don't have, I mean look, most Americans don't have more than $400 in free cash. Watch out and watch how this works. If you ever want to be, if you ever really want to see the inequities here and see how the system is so fucked up, go sit. You could do it obviously not now, but when the world resumes to some sense of normal, so you go to any criminal court and watch the arraignments, all right? And if you watch the arraignments, you will see they parade in all of the arrestees of the last 24 hours and they read their charges and they will then set bail. They will make a decision on bail. You'll notice two or three things. One, you'll notice that the vast majority of people in any, certainly in any urban jurisdiction in any big city are people of color and I sat recently watching this happen in Tampa, Florida because I was working on the James Daly case and they did arraignments before my hearing and I sat with a bunch of public defenders and I listened to them wince. Every time someone of color, a young person of color was brought in, driving on a suspended license, possession of marijuana, possession of hydrocodone without a prescription, and they set their bail a thousand, ten thousand, seven thousand, and they would say, well, that person's going to get out or they say, if you don't, we're going to let you out, but if you don't pay a fine of $1,500 within 60 days, you're back in. Oh, he'll be back in. I'll be representing him again. And you watch, as Jason put it, this churn machine and you watch how these people of color are treated very differently from white defendants and you, you can just assess based on the fact that the judge will say, do you currently have a job? No. Where are you living? Well, I don't know. I'm going to stay on someone's couch and you start to quickly be able to do the computation in your mind. Where are they coming up with a thousand dollars or $500 and then they will reoffend and end up right back where they were. And what it will really be striking to you is that I would, I would venture to say in the high eighties in terms of percentage, these people, what they really need is help with an addiction. And if we put a third of the money that we spend incarcerating people, keeping them incarcerated on drug and alcohol rehabilitation, the incarceration rate would plummet and the recidivism rate, you know, people reoffending would plummet. And not only we don't have to hypothesize, that's in fact what happens. It happens in countries that, you know, decriminalize drugs and it happens in countries where there's not such an emphasis on jailing people and there's more of an emphasis on getting them help. And to answer your question, Joe, I just looked it up because this is, I'm going to quote from the book, Usual Cruelty, again by Alec Hart-Gazanis, between 80 and 90 percent of the people charged with crimes are so poor that they cannot afford a lawyer. 25 years into American incarceration boom, black people were incarcerated at a rate six times that of South Africa during apartheid. The incarceration rate for black people in the nation's capital where I live is 19 times that of white people. And it still goes on every day. And the net benefit to society, well there is no net benefit to society. In fact, it's been proven the University of Pennsylvania, the Quattrone Center did a study that showed that people, they studied people who were jailed or freed for the exact same crime under the exact same circumstances, right? And this one posted bail and that one couldn't. And they found that the people who went to jail, even if for as little as a few days, were 40 percent more likely to be arrested for another felony in an ensuing year. So because their lives fall apart while they're in jail and then, you know, like I said, they lose their job, you can't just not show up for work for a few days and be like I was in jail, you know? So, you know, and if I could, I'm just going to read the first paragraph of the book because this really, I think, puts it in stark contrast. Tell people what the book is again? The book is called Usual Cruelty by Alec Karakatsanis, which is K-A-R-A-K-A-T-S-A-N-I-S, it's kind of a tongue twister. And so the book starts off, on January 26, 2014, Sharnell Mitchell was sitting on her couch with her one-year-old daughter on her lap and her four-year-old son to her side. Armed government agents entered her home, put her in metal restraints, took her from her children and bought her to the Montgomery City jail. Jail staff, sorry, I got to turn the page, jail staff told Sharnell that she owed the city money for old traffic tickets. The city had privatized the collection of her debts to a for-profit probation company which had sought a warrant for her arrest. I happened to be sitting in the courtroom on the morning that Sharnell was brought to court along with dozens of other people who had been jailed because they owed the city money. The judge demanded that Sharnell pay or stay in jail. If she could not pay, she would be kept in a cage until she, quote, sat out her debts at $50 per day or $75 per day if she agreed to clean the courthouse bathrooms and the feces, blood and mucus from the jail walls. An hour later in a windowless cell, Sharnell told me that a jail guard had given her a pencil and she showed me the crumpled court document on the back of which she had calculated how many more weeks of forced labor separated her from her children. That day, she became my first client as a civil rights lawyer. So, you know, that's really it. You know, we have this mythology in America that the people in jails are bad people. A lot of them are there just because they're poor. There's no other reason that Sharnell Mitchell or all these other people are there except they couldn't pay their traffic tickets. And what do you, you know, we talked about single parents, right? What do you do? You're a single parent. You have a choice between feeding your kids or paying your traffic ticket or whatever it might be. These are not bad people. And the idea that we send like a more or less like a SWAT team to the home of this woman to pull her away from her kids. What kind of planet is there where that's okay? But it happens in darkness, right? It doesn't, we don't see that, right? Now there's all this awareness being brought to George Floyd and the rest of this stuff, which is really important. And I'm so glad that it's coming to light and people are starting to, you know, really rise up as one, right? As one group, as humans, not as black people or white people or any other kind of people but together. But this stuff happens under the shade of darkness where we don't see it. We don't see what happens in the jails and prisons. But what happens there in Harris County where Alec won this suit recently, and now this did a wonderful piece on this, but about 20 people a year die in the Harris County jail awaiting trial, right? They're either murdered or something. Sandra Bland died in that jail, right? And, you know, we have to just fucking stop. I mean, this is, it's unconscionable to me. We have seven million people under the control of the criminal justice system, right? We have more black people incarcerated right now or under control of the system than we ever had enslaved in any time in US history. Jesus Christ. What is that? That's crazy. And the amount of human potential that's lost, it boggles my mind. There's probably another Lennox Lewis that could have been, right? There's another Jay-Z in there somewhere. I asked Meek Mill when he was on my podcast, Wrongful Conviction. I said, how many guys ever did you meet in jail who could have been another you? And he said, I can't even tell you. He goes, there's so many talented people in there that just, you know, got... Circumstance. Yeah.