1 00:00:00,156 --> 00:00:05,648 [music] 2 00:00:05,673 --> 00:00:08,349 Kathryn: So, how did we get into the situation where we 3 00:00:08,349 --> 00:00:10,093 have these problems with money bail? 4 00:00:10,093 --> 00:00:15,113 That's the focus of this segment where we focus on how bail 5 00:00:15,113 --> 00:00:18,338 practices developed in the United States and what that 6 00:00:18,338 --> 00:00:21,298 means for current pretrial reform. 7 00:00:21,298 --> 00:00:24,701 If you turn to page 17 in your participant guide, we'll take a 8 00:00:24,701 --> 00:00:28,131 quick look at the objectives for this segment of the program. 9 00:00:28,131 --> 00:00:32,008 First, we're going to describe the history of bail and the 10 00:00:32,008 --> 00:00:34,819 lessons we've learned that from. Secondly, we'll described the 11 00:00:34,819 --> 00:00:38,097 fundamental legal principles behind bail and the lessons 12 00:00:38,097 --> 00:00:40,726 learned there. And we'll also understand the 13 00:00:40,726 --> 00:00:45,006 purposes of bail and no bail in the United States. 14 00:00:45,006 --> 00:00:49,313 We're going to glance quickly at our framework for pretrial 15 00:00:49,313 --> 00:00:52,061 justice, and, again, at this portion of the program we're 16 00:00:52,061 --> 00:00:56,378 going to be focusing on the law. Now, as just an introduction to 17 00:00:56,378 --> 00:01:00,048 this segment, we know that a lot of people are not familiar with 18 00:01:00,048 --> 00:01:03,649 the history of bail, which is critical to understanding where 19 00:01:03,649 --> 00:01:07,082 we are now in terms of what the law says and where we need to go 20 00:01:07,082 --> 00:01:09,663 from here. And so this is going to be a 21 00:01:09,663 --> 00:01:12,361 brief segment, but trust me, it's very informative. 22 00:01:12,361 --> 00:01:15,046 You will learn things about the history of bail and the law you 23 00:01:15,046 --> 00:01:18,547 did not know before and it will help us as we move into the 24 00:01:18,547 --> 00:01:21,528 other segments as we talk about how do we begin to make 25 00:01:21,528 --> 00:01:23,968 appropriate changes based on that history and based on the 26 00:01:23,968 --> 00:01:25,789 law. So, let's start first with 27 00:01:25,789 --> 00:01:29,810 Leland, and that is, why is understanding the history of 28 00:01:29,810 --> 00:01:33,631 bail law important to our current reform efforts? 29 00:01:33,874 --> 00:01:37,163 Leland: Well, Kathryn, understanding the history of bail is really critical 30 00:01:37,163 --> 00:01:39,791 to understanding why the United States has gone through 31 00:01:39,791 --> 00:01:43,760 two generations of bail reform previously, and why we are 32 00:01:43,760 --> 00:01:48,404 currently in a third. Also, really, the history of bail 33 00:01:48,404 --> 00:01:51,882 provides all the contextual answers for really every 34 00:01:51,882 --> 00:01:53,324 question that's raised about bail. 35 00:01:53,324 --> 00:01:56,553 So, it's really critical that people understand that history. 36 00:01:56,791 --> 00:01:58,909 Kathryn: Okay. What we're going to do right now, is look at 37 00:01:58,909 --> 00:02:01,892 a feature segment. It basically shows you the 38 00:02:01,892 --> 00:02:04,712 history of bail in a thousand years in three minutes. 39 00:02:05,751 --> 00:02:08,528 So, it's brief. It's informative, but here's the important thing you 40 00:02:08,528 --> 00:02:11,236 should look for. It focuses on how we turned from 41 00:02:11,236 --> 00:02:15,614 traditions of release to traditions of detention, based on 42 00:02:15,614 --> 00:02:16,386 money bail. 43 00:02:17,362 --> 00:02:29,478 [music] 44 00:02:29,478 --> 00:02:34,070 Narrator: Bail and no bail are processes for pretrial release and detention have 45 00:02:34,070 --> 00:02:39,498 1,000-year-old European roots. In 1066, the Normans invaded 46 00:02:39,498 --> 00:02:42,492 England. Bringing with them a new criminal justice system, 47 00:02:42,492 --> 00:02:46,078 including establishing which offenses were bailable and which 48 00:02:46,078 --> 00:02:47,480 were not. 49 00:02:48,280 --> 00:02:50,598 By 1274, King Edward the First learned 50 00:02:50,598 --> 00:02:54,235 that sheriffs were abusing that custom by forcing customarily bailable 51 00:02:54,235 --> -00:19:17,989 people to pay get out of jail. And also allowing customarily unbailable people 52 -00:19:17,921 --> -00:19:14,486 to pay for release from jail. 53 00:03:00,712 --> 00:03:03,704 In response to these abuses, Parliament enact the Statute of 54 00:03:03,704 --> 00:03:07,894 Westminster in 1275, which ensured bailable defendants would 55 00:03:07,894 --> 00:03:10,626 be released, and unbailable defendants would be detained 56 00:03:10,626 --> 00:03:14,817 without additional payment. By making it crime for royal sheriffs to act 57 00:03:14,817 --> 00:03:15,399 otherwise. 58 00:03:16,285 --> 00:03:20,134 Accordingly by 1275, the right to bail was meant to equal a 59 00:03:20,134 --> 00:03:23,462 right to release and the denial of a right to bail was meant to 60 00:03:23,462 --> 00:03:27,465 equal detention. To make sure that bail actually equaled release, 61 00:03:27,465 --> 00:03:31,942 the English used personal sureties, people who watched over the defendants 62 00:03:31,942 --> 00:03:35,429 and who were not allowed to profit or even be paid back if they lost money. 63 00:03:35,429 --> 00:03:38,349 More importantly, the English used what we call today, 64 00:03:38,349 --> 00:03:41,632 unsecured bonds, which was a promise to pay some amount of 65 00:03:41,632 --> 00:03:44,971 money, only in the event the defendant did not return to court. 66 00:03:44,971 --> 00:03:49,005 Using unsecured bonds and keeping profit out of bail, made 67 00:03:49,005 --> 00:03:51,838 sure virtually, all bailable defendants were actually 68 00:03:51,838 --> 00:03:55,285 released because nobody had to pay anything up front to get out 69 00:03:55,285 --> 00:03:58,420 of jail. These vital principles continued in England 70 00:03:58,420 --> 00:04:01,235 and were carried over to the colonies in the 1600s. 71 00:04:01,517 --> 00:04:04,972 Gradually, the American colonies enlarged the right to bail. 72 00:04:04,972 --> 00:04:09,361 In 1682, Pennsylvania adopted a very broad and liberal bail law. 73 00:04:09,361 --> 00:04:14,102 The Great law of 1682 ensured that all prisoners shall be 74 00:04:14,102 --> 00:04:17,421 bailable by sufficient sureties unless for capital offenses, 75 00:04:17,421 --> 00:04:20,226 where the proof is evident or presumption great. 76 00:04:20,226 --> 00:04:25,227 America liked a broad right to pretrial release and so the language in 1682 77 00:04:25,227 --> 00:04:27,896 Pennsylvania Great law became the model for nearly 78 00:04:27,896 --> 00:04:29,762 every American jurisdiction afterward. 79 00:04:30,448 --> 00:04:34,047 Accordingly, in early America and for roughly 200 years a 80 00:04:34,047 --> 00:04:36,486 defendant was either bailable or he was not. 81 00:04:36,486 --> 00:04:39,840 And if he was bailable, he was expected to be released. 82 00:04:39,840 --> 00:04:43,433 For the most part, only people facing capital crimes could be 83 00:04:43,433 --> 00:04:46,860 detained pretrial. As in England, America wanted to 84 00:04:46,860 --> 00:04:51,070 make sure that bail equaled release. So, it too, used personal sureties 85 00:04:51,070 --> 00:04:54,249 and unsecured bonds, so that no defendant had to pay anything up 86 00:04:54,249 --> 00:04:57,599 front to get out of jail. This meant that the accused had to 87 00:04:57,599 --> 00:05:00,841 find one or two people they knew, who could guarantee they would 88 00:05:00,841 --> 00:05:03,956 return to court and promise to pay a lump sum of money if the 89 00:05:03,956 --> 00:05:05,688 accused the did not return to court. 90 00:05:06,351 --> 00:05:09,684 As in England, the system worked to get all bailable defendants 91 00:05:09,684 --> 00:05:12,432 out of jail. So, how did we get to where we 92 00:05:12,432 --> 00:05:14,902 are today? As our nation dramatically 93 00:05:14,902 --> 00:05:17,805 increased in size, due to territorial expansion west of 94 00:05:17,805 --> 00:05:21,064 the Mississippi, it became more and more difficult for our 95 00:05:21,064 --> 00:05:24,050 courts to find people who would act as sureties for no money. 96 00:05:24,050 --> 00:05:27,095 Also, the absence of close friends and neighbors in 97 00:05:27,095 --> 00:05:29,861 frontier America would have made it difficult for the court to 98 00:05:29,861 --> 00:05:32,889 find acceptable personal custodians for many defendants. 99 00:05:33,869 --> 00:05:37,512 Finally, the vast expanse of land provided sanctuary for any 100 00:05:37,512 --> 00:05:41,019 defendant wanting to abscond. This led to the creation of the 101 00:05:41,019 --> 00:05:44,997 first commercial surety in 1898, the use of secured commercial 102 00:05:45,049 --> 00:05:49,661 bonds and ultimately, the first generation of U.S. bail reform. 103 00:05:49,661 --> 00:05:58,663 [music] 104 00:05:58,679 --> 00:06:01,554 Kathryn: So, we've learned a little bit about the 105 00:06:01,554 --> 00:06:05,793 history of bail from early England to 19th century 106 00:06:05,793 --> 00:06:10,452 America, but Leland, what led to our current system of bail in 107 00:06:10,452 --> 00:06:11,379 the United States? 108 00:06:11,467 --> 00:06:14,549 Leland: Well, really it was the major shift from a system that used 109 00:06:14,549 --> 00:06:19,293 unsecured bonds, to a system that used secured bonds, and this really came to 110 00:06:19,293 --> 00:06:23,509 be because, as you saw in the graphic, we were running out of 111 00:06:23,509 --> 00:06:25,699 personal sureties due to westward expansion. 112 00:06:25,699 --> 00:06:31,916 Our solution was, in the 1900s, to shift to a system that used 113 00:06:31,916 --> 00:06:37,191 commercial sureties and secured bonds and unfortunately, that 114 00:06:37,191 --> 00:06:40,489 resulted in more bailable defendants being held in jail 115 00:06:40,489 --> 00:06:44,682 because they couldn't post the amount needed up front to obtain 116 00:06:44,682 --> 00:06:48,296 their release. Within 20 years of the advent of 117 00:06:48,296 --> 00:06:54,346 this new system, scholars began to study for-profit commercial 118 00:06:54,346 --> 00:06:59,227 sureties and secured money bonds, in detail, which really 119 00:06:59,227 --> 00:07:02,863 kind of was the impetus for the first generation of bail reform. 120 00:07:02,863 --> 00:07:05,109 Kathryn: Okay. So, we know this conversation has been going 121 00:07:05,109 --> 00:07:07,873 on for a while and the first generation of reform was, as you 122 00:07:07,873 --> 00:07:10,082 said, a lot of people couldn't pay to get out of jail, 123 00:07:10,082 --> 00:07:15,153 so they were stuck in jail. And in the early 1960s, there 124 00:07:15,153 --> 00:07:16,591 was a lot of conversation about this. 125 00:07:16,591 --> 00:07:21,630 Readers Digest, in fact, created a documentary called "All America 126 00:07:21,630 --> 00:07:24,964 Wants to Know" where they tackled the problem of money bail. 127 00:07:24,964 --> 00:07:29,124 We have an excerpt from that documentary back in the 1960s. 128 00:07:29,125 --> 00:07:34,790 [music] 129 00:07:34,790 --> 00:07:37,536 Documentary: Why should the average law abiding citizen be concerned 130 00:07:37,536 --> 00:07:39,438 with the problem of bail or jail? 131 00:07:40,327 --> 00:07:44,269 Well, Ted, I don't want to get into the humanitarian 132 00:07:44,269 --> 00:07:46,936 aspects. They should be so obvious to 133 00:07:46,936 --> 00:07:52,986 everybody. What happens to a man when he spends grueling days in 134 00:07:52,986 --> 00:07:55,705 jail. I gave you the New York figures 135 00:07:55,705 --> 00:08:01,285 and what they add up to? 1,800,000 smoldering days in jail were 136 00:08:01,285 --> 00:08:05,353 spent last year by the defendants awaiting trial. 137 00:08:05,353 --> 00:08:12,180 Now, just forgetting what happens to a man, his future job 138 00:08:12,180 --> 00:08:17,207 prospects, his incentive to additional further crime, his 139 00:08:17,207 --> 00:08:22,404 family, there are also pocketbook aspects. 140 00:08:22,762 --> 00:08:27,520 The family goes on relief That says he's paid for that. 141 00:08:27,520 --> 00:08:34,357 The cost, 1,800,000 in one city. They's in one city. 142 00:08:34,357 --> 00:08:42,929 The cost has been estimated from $6 low to a citizen's union 143 00:08:42,929 --> 00:08:48,714 estimate of $10 to $20 a day for each person in jail. 144 00:08:48,920 --> 00:08:51,091 You can rapidly make calculations. 145 00:08:51,091 --> 00:08:56,240 Our jails in New York City are presently bursting at the seams. 146 00:08:56,240 --> 00:09:01,428 We've hit a new record of over 13,000 inmates held in detention 147 00:09:01,428 --> 00:09:08,858 and after sentence. And to erect new bails to cope with 148 00:09:08,858 --> 00:09:13,377 this means tens of millions of dollars in capital investments. 149 00:09:13,858 --> 00:09:17,127 Yes, the jails are bursting at the seams, a problem of great 150 00:09:17,127 --> 00:09:19,952 concern to New York City Commissioner of Correction, Anna 151 00:09:19,952 --> 00:09:23,138 Cross, a long-time fighter against bail or jail. 152 00:09:23,524 --> 00:09:26,414 The question of bail is a very important one. 153 00:09:26,414 --> 00:09:30,574 I became interested in the problem as a magistrate way back 154 00:09:30,574 --> 00:09:36,912 in 1934, and had as part of my everyday routine the question of 155 00:09:36,912 --> 00:09:42,346 why we can't allow many people to have their trials heard 156 00:09:42,346 --> 00:09:45,215 without their remaining in jail awaiting trial. 157 00:09:45,215 --> 00:09:48,401 Because remaining in jail -- because you can't get bail, 158 00:09:48,401 --> 00:09:51,092 is really being punished before you're even found guilty. 159 00:09:51,092 --> 00:09:56,863 And, What bothered me as the jailer, is why so many people had to 160 00:09:56,863 --> 00:10:00,447 remain in jail for the length of time that they did 161 00:10:00,447 --> 00:10:02,527 because they range from a few days-- 162 00:10:02,527 --> 00:10:06,317 --Because averages don't really tell you the story. The average in some 163 00:10:06,317 --> 00:10:11,181 places was 40 days, 30 days, but some men and women remain in jail 164 00:10:11,181 --> 00:10:15,188 inordinate times. And, as far as I was concerned, that 165 00:10:15,188 --> 00:10:18,681 was not just. That was destroying our concept 166 00:10:18,681 --> 00:10:21,630 of justice. So, I'm very happy that the 167 00:10:21,630 --> 00:10:25,668 Reader's Digest is going into looking at this problem and is 168 00:10:25,668 --> 00:10:26,749 writing about it. 169 00:10:26,749 --> 00:10:31,129 [music] 170 00:10:31,237 --> 00:10:34,228 Kathryn: If only the cost of keeping somebody in jail for a day was 171 00:10:34,228 --> 00:10:39,803 still only 15 or $20. But yet, the first generation of bail reform 172 00:10:39,803 --> 00:10:43,341 was in the 1960s, and, Leland, what were the goals and results and 173 00:10:43,341 --> 00:10:47,429 how did that lead to other generations of reform? 174 00:10:47,429 --> 00:10:50,740 Leland: So, Kathryn, when we think about the first generation of bail reform, 175 00:10:50,740 --> 00:10:54,005 which was roughly from the 1920s to the 1960s, 176 00:10:54,005 --> 00:10:56,408 we really should think about release, because that was the focus of that 177 00:10:56,408 --> 00:11:01,822 generation. Scholars and reformers were really focused on getting 178 00:11:01,822 --> 00:11:04,505 defendants out of jail, who were there solely because they 179 00:11:04,505 --> 00:11:08,061 couldn't afford to pay for their release, and during this 180 00:11:08,061 --> 00:11:11,315 generation, we focused and created new means for people to 181 00:11:11,315 --> 00:11:15,039 get out of jail such as release on recognizance, and we also 182 00:11:15,039 --> 00:11:17,482 started developing the first pretrial service agencies. 183 00:11:17,482 --> 00:11:22,420 Now, in contrast to that, the second generation of reform was 184 00:11:22,420 --> 00:11:28,564 about detention. It was sparked by people were 185 00:11:28,564 --> 00:11:31,485 getting out of jails and committing crimes, and also by 186 00:11:31,485 --> 00:11:34,065 the fact that during the first generation, we really didn't 187 00:11:34,065 --> 00:11:38,507 address this issue of how do we detain people who are a risk to 188 00:11:38,507 --> 00:11:41,462 public and community safety? And so, during the second 189 00:11:41,462 --> 00:11:47,263 generation, what we did was, we created public safety as a 190 00:11:47,263 --> 00:11:50,734 legitimate reason to limit pretrial freedom and we created 191 00:11:50,734 --> 00:11:53,840 schemes that allowed for preventative or no bail 192 00:11:53,840 --> 00:11:57,454 detention. The problem today, is that states 193 00:11:57,454 --> 00:12:01,473 really cherry picked these previous two reforms and so, 194 00:12:01,473 --> 00:12:07,471 there wasn't a complete picture. And, that really resulted in the fact that we 195 00:12:07,471 --> 00:12:10,465 don't release or detain the right people in most 196 00:12:10,465 --> 00:12:14,386 jurisdictions in the United States. And our third generation, 197 00:12:14,386 --> 00:12:16,217 our current generation of bail reform. 198 00:12:16,620 --> 00:12:18,794 Kathryn: Okay. And so, really what the third generation of 199 00:12:18,794 --> 00:12:22,956 reform, is involving then is because of the cherry picking is 200 00:12:22,956 --> 00:12:26,448 the changing of laws and sometimes state constitutions, in 201 00:12:26,448 --> 00:12:30,313 order to correct this problem that we have with money bail. 202 00:12:30,313 --> 00:12:34,822 Chief Justice Charles Daniels of the New Mexico supreme court talks 203 00:12:34,822 --> 00:12:38,089 about the reform efforts that are under way in his state. 204 00:12:38,838 --> 00:12:43,766 [music] 205 00:12:43,960 --> 00:12:49,701 Chief Justice Daniels: Our court was sufficiently concerned that we set about to 206 00:12:49,701 --> 00:12:53,412 try to get a handle on what was going on in New Mexico. 207 00:12:54,016 --> 00:12:55,724 We looked at what had been happening in other 208 00:12:55,724 --> 00:12:58,465 jurisdictions. We looked at how we ended up 209 00:12:58,465 --> 00:13:04,992 with a money system instead of an evidence-based system, and we 210 00:13:04,992 --> 00:13:09,928 appointed a broad-based task force comprised of all 211 00:13:09,928 --> 00:13:12,959 components of the criminal justice system, prosecution, 212 00:13:12,959 --> 00:13:17,184 defense, the judiciary, the detention centers, who have to 213 00:13:17,184 --> 00:13:20,719 jail these folks, the commercial bail bonds men. 214 00:13:20,719 --> 00:13:23,190 We had seats at the table for them. 215 00:13:25,507 --> 00:13:30,229 All kinds of people who had experience, input, perspectives, 216 00:13:30,229 --> 00:13:32,982 and asked them to look at what was happening. 217 00:13:32,982 --> 00:13:37,063 Are we complying with what the theory of our law is? 218 00:13:37,063 --> 00:13:39,096 And there's a lot of established law in bail. 219 00:13:39,096 --> 00:13:46,867 Should we change the rules, the principles of law that apply to 220 00:13:46,867 --> 00:13:50,031 have a more effective and more fair system? 221 00:13:50,916 --> 00:13:56,207 And to recommend to the Supreme Court, which in New Mexico, 222 00:13:56,207 --> 00:14:00,582 writes the rules of procedure, including bail, and to recommend 223 00:14:00,582 --> 00:14:05,940 to the legislature and the governor of New Mexico what we 224 00:14:05,940 --> 00:14:11,647 ought to do in changing rules, changing statutes, changing 225 00:14:11,647 --> 00:14:15,524 constitutional provisions where they needed to be, and we found 226 00:14:15,524 --> 00:14:18,588 changes were necessary in all of those. 227 00:14:18,734 --> 00:14:23,650 [music] 228 00:14:23,679 --> 00:14:26,226 Kathryn: Incidentally, New Mexico voters will be voting 229 00:14:26,226 --> 00:14:29,898 on a constitutional amendment in November, that essentially will 230 00:14:29,898 --> 00:14:33,374 eliminate money bail and change a lot of laws regarding bail. 231 00:14:33,723 --> 00:14:36,529 So, we know, Tim, that New Mexico was among the national leaders 232 00:14:36,529 --> 00:14:40,443 kind of setting the--becoming the model for pretrial justice reform, 233 00:14:40,443 --> 00:14:42,110 and what's happening in other states? 234 00:14:42,663 --> 00:14:44,956 Tim: There's a lot happening in other states. In fact, these days, 235 00:14:44,956 --> 00:14:47,655 it's easier to keep track of the states that aren't doing anything, than 236 00:14:47,655 --> 00:14:51,522 it is the ones that are. The ones that are doing things all have three 237 00:14:51,522 --> 00:14:54,756 things in common. One, is that they're using that research that we talked about, 238 00:14:54,756 --> 00:14:58,414 they're getting help from very important groups, like the National Institute of 239 00:14:58,414 --> 00:15:01,718 Corrections or Pretrial Justice Institute and then they're crafting 240 00:15:01,718 --> 00:15:06,314 individual solutions they can use in their state to try to fix all these problems. 241 00:15:06,550 --> 00:15:09,137 Kathryn: Okay. So, Tim, what can we say are the lessons that we've 242 00:15:09,137 --> 00:15:12,963 learned from the history of bail and what does the history of 243 00:15:12,963 --> 00:15:16,836 bail tell us about our current pretrial practices in the United 244 00:15:16,836 --> 00:15:17,650 States? 245 00:15:18,169 --> 00:15:22,500 Tim: You know, the best lesson from history would be we're in a generation of 246 00:15:22,500 --> 00:15:25,341 reform. And that's important to know because if you know you're in a 247 00:15:25,341 --> 00:15:27,868 generation of reform, you can look at other generations and 248 00:15:27,868 --> 00:15:29,540 see how to get out of that generation. 249 00:15:30,381 --> 00:15:34,542 History, also tells us, that ever since 1275, bail has always been an in or 250 00:15:34,542 --> 00:15:38,858 out proposition. And if anything ever interferes with that, then 251 00:15:38,858 --> 00:15:41,540 bail reform happens. And the rule you can sort of think 252 00:15:41,540 --> 00:15:46,555 to yourself, is if anybody -- if the wrong people are in or out 253 00:15:46,555 --> 00:15:50,155 of jail, bail reform happens. Right now, in America we have all 254 00:15:50,155 --> 00:15:51,790 the wrong people in and out of jail. 255 00:15:51,790 --> 00:15:55,024 We have low and medium risk people who are in jail because of money. 256 00:15:55,230 --> 00:15:58,234 We have sometimes extremely high risk people who get out of jail 257 00:15:58,234 --> 00:16:00,983 who probably should be in there that get out because of money. 258 00:16:00,983 --> 00:16:03,686 So, the history tells us more than anything, we're in a 259 00:16:03,686 --> 00:16:06,662 generation of bail reform, but it tells us how to get out of that 260 00:16:06,662 --> 00:16:10,235 generation and how to avoid a fourth generation of bail reform. 261 00:16:10,337 --> 00:16:12,108 Kathryn: Alright. Well, let's move our discussion 262 00:16:12,108 --> 00:16:14,096 then from history to the law. 263 00:16:14,341 --> 00:16:16,632 We're going to connect them a little bit later, but let's talk 264 00:16:16,632 --> 00:16:21,074 about the importance of understanding the legal 265 00:16:21,074 --> 00:16:23,349 principles behind bail and what do we need to know about that, 266 00:16:23,349 --> 00:16:23,793 Leland? 267 00:16:23,881 --> 00:16:27,421 Leland: Well, Kathryn, the fundamental legal principles behind bail as 268 00:16:27,421 --> 00:16:30,512 Tim mentioned in the first segment, really provide the boundaries 269 00:16:30,512 --> 00:16:33,127 for pretrial release and detention in the United States. 270 00:16:33,127 --> 00:16:37,048 They provide a guide on how to do bail, or release properly and how to do 271 00:16:37,048 --> 00:16:43,184 no bail and detention properly, as well. And what's surprising is that these 272 00:16:43,184 --> 00:16:45,690 fundamental legal principles are not a novel concept. 273 00:16:45,690 --> 00:16:49,019 They have been with us since the founding of our country, but 274 00:16:49,019 --> 00:16:51,801 unfortunately, for several decades, these principles have 275 00:16:51,801 --> 00:16:54,984 been essentially ignored, and the result has been that 276 00:16:54,984 --> 00:16:59,251 pretrial practices, laws and policies have been created that 277 00:16:59,251 --> 00:17:03,683 violate these principles. Fortunately, things are changing 278 00:17:03,683 --> 00:17:06,953 in the United States, and courts are holding up these practices, 279 00:17:06,953 --> 00:17:10,508 policies and laws to the fundamental legal principles and 280 00:17:10,508 --> 00:17:12,047 forcing jurisdictions to change. 281 00:17:12,047 --> 00:17:15,905 Kathryn: Alright. So, Tim, what would you say are the foundational 282 00:17:15,905 --> 00:17:20,047 legal principles that every person who is involved in pretrial justice 283 00:17:20,047 --> 00:17:21,879 should know and understand? 284 00:17:22,023 --> 00:17:26,238 Tim: I think there's a bunch. But, we'll just talk about five very quickly, and that 285 00:17:26,238 --> 00:17:29,417 would be the presumption of innocence, the right to bail, 286 00:17:29,417 --> 00:17:32,387 excessive bail, due process and equal protection. 287 00:17:32,387 --> 00:17:35,937 The presumption of innocence is foundational to our entire 288 00:17:35,937 --> 00:17:39,429 criminal justice system. It's basically is a concept that if you 289 00:17:39,429 --> 00:17:41,842 are arrested as a defendant, you don't have to prove your 290 00:17:41,842 --> 00:17:43,549 own innocence. Government has to prove your 291 00:17:43,549 --> 00:17:46,673 guilt beyond a reasonable doubt. But, it also applies to bail. 292 00:17:46,673 --> 00:17:49,825 It's very important when it comes to the right to bail and 293 00:17:49,825 --> 00:17:52,760 in fact, it's like the primary reason for why we even have that 294 00:17:52,760 --> 00:17:55,442 right in America. When it comes to the right to 295 00:17:55,442 --> 00:17:58,494 bail, that's important because every state has it. 296 00:17:58,494 --> 00:18:01,227 They may articulate it differently but we all have it. 297 00:18:01,227 --> 00:18:04,456 Historically speaking, the right to bail was always the right to 298 00:18:04,456 --> 00:18:07,990 release, which was why in 1951, the U.S. Supreme Court equated 299 00:18:07,990 --> 00:18:10,410 the right to bail with the right to release before trial. 300 00:18:10,836 --> 00:18:14,080 Obviously, as Leland suggested, we sort of gotten away from that. 301 00:18:14,637 --> 00:18:17,689 Excessive bail is what people mostly hear about. 302 00:18:17,689 --> 00:18:20,955 It's because they're thinking about high numbers in money, but 303 00:18:20,955 --> 00:18:23,553 what they probably don't realize is historically speaking, 304 00:18:23,553 --> 00:18:27,881 whenever we had a number of money that the person couldn't 305 00:18:27,881 --> 00:18:30,972 make, that was deemed excessive, historically. 306 00:18:30,972 --> 00:18:33,553 We've gotten way away from that in America now. 307 00:18:33,553 --> 00:18:36,435 We somehow tolerate people sitting in jail on amounts of 308 00:18:36,435 --> 00:18:38,306 money this they can't possibly make. 309 00:18:38,306 --> 00:18:41,602 And due process is -- really gets down to fundamental 310 00:18:41,602 --> 00:18:43,859 fairness. It's one of those things where if you see something 311 00:18:43,859 --> 00:18:48,779 that's arbitrary, unfair, irrational the government is not 312 00:18:48,779 --> 00:18:51,117 allowed to do those kinds of things to people in this 313 00:18:51,117 --> 00:18:54,261 country and if you see that in bail, which we see a lot in bail, 314 00:18:54,261 --> 00:18:56,924 you can realize you probably have a due process claim. 315 00:18:57,301 --> 00:19:01,324 Kathryn: Okay. And finally, the final principle, is equal 316 00:19:01,324 --> 00:19:03,772 protection and what does that involve, Leland? 317 00:19:03,772 --> 00:19:06,782 Leland: Well, like due process, equal protection is about fairness. 318 00:19:06,782 --> 00:19:10,585 It's a guarantee that similarly situated persons will be treated 319 00:19:10,585 --> 00:19:14,692 alike in the eyes of the law, especially when there's a fundamental 320 00:19:14,692 --> 00:19:18,154 right involved like, Liberty, or a suspect class, 321 00:19:18,154 --> 00:19:21,890 such as race or gender, and you would think that bail would be 322 00:19:21,890 --> 00:19:25,528 perfect for equal protection challenge, given the implications 323 00:19:25,528 --> 00:19:29,342 based on wealth and race, however, courts have been slow 324 00:19:29,342 --> 00:19:31,967 to kind of embrace equal protection challenges. 325 00:19:32,175 --> 00:19:34,701 Kathryn: Okay. So, we know we need to understand these legal 326 00:19:34,701 --> 00:19:38,993 principles, but, Tim, how should these legal principles be 327 00:19:38,993 --> 00:19:42,303 applied to pretrial reform efforts then? 328 00:19:42,421 --> 00:19:44,688 Tim: Well, to apply them you need to hold them up, 329 00:19:44,688 --> 00:19:47,536 because they are these big lofty principles and then you take 330 00:19:47,536 --> 00:19:51,786 all your policies and practices, even your laws and hold them up to 331 00:19:51,786 --> 00:19:53,857 these higher principles and ask yourself, do 332 00:19:53,857 --> 00:19:57,246 they abide by the basic fundamental notions that involved in 333 00:19:57,246 --> 00:20:00,196 these practices. When anybody does that, they 334 00:20:00,196 --> 00:20:02,155 almost uniformly realize they have to change a 335 00:20:02,155 --> 00:20:06,334 heck of a lot of stuff, which is why it's so important that later, you listen very 336 00:20:06,334 --> 00:20:09,307 closely to Tom O'Connor talking about how to make that change. 337 00:20:09,588 --> 00:20:12,852 Kathryn: Okay. So, let's talk specifically how legal principles fit with the 338 00:20:12,852 --> 00:20:19,204 history of bail and the law and how they're applied to pretrial 339 00:20:19,204 --> 00:20:21,339 release and detention. What do we know about that? 340 00:20:21,531 --> 00:20:24,979 Tim: Well, it's interesting because the history and law come together sort of almost 341 00:20:25,028 --> 00:20:30,487 hand and glove sense with court cases. And we have two court cases that are 342 00:20:30,487 --> 00:20:32,933 dealing with bail that everybody needs to know. And tack up 343 00:20:32,933 --> 00:20:37,293 on their cubicle walls. And that's Stack versus Boyle from 1951 and 344 00:20:37,293 --> 00:20:39,823 and United States versus Salerno from 1987. 345 00:20:40,048 --> 00:20:43,819 Kathryn: Alright then. Leland, tell us about Stack versus Boyle, first. And 346 00:20:43,819 --> 00:20:45,764 the lessons that we've learned from that case. 347 00:20:45,905 --> 00:20:48,606 Leland: Well, the Stack case comes from the first generation of bail 348 00:20:48,606 --> 00:20:51,664 reform and so, therefore, we can think of it as focusing 349 00:20:51,664 --> 00:20:55,573 on release. And every case tells a story and 350 00:20:55,573 --> 00:20:59,598 Stack tells a story of America during the Red Scare or 351 00:20:59,598 --> 00:21:02,723 McCarthy era in the United States, where fear of 352 00:21:02,723 --> 00:21:06,947 Communism and Communist infiltration of America was rampant and 353 00:21:06,947 --> 00:21:09,687 many Americans were accused of being Communists or Communist 354 00:21:09,687 --> 00:21:13,273 sympathizers and subject to investigation and arrest. 355 00:21:13,273 --> 00:21:18,304 Now, the named plaintiff, Loretta Stack, was a waitress in San Francisco 356 00:21:18,304 --> 00:21:22,540 and she also happened to be, unfortunately for her, the secretary of her 357 00:21:22,540 --> 00:21:28,575 local communist party at the time. In 1951, Loretta and 11 other members 358 00:21:28,575 --> 00:21:33,016 of the communist party in California were charged with advocating or 359 00:21:33,016 --> 00:21:36,345 conspiring to advocate the overthrow of the United States government. 360 00:21:36,345 --> 00:21:41,572 And what happened was the district court eventually set a bail 361 00:21:41,572 --> 00:21:45,920 amount of $50,000 on each of those defendants. 362 00:21:45,920 --> 00:21:51,033 Now, those defendants said, hey, this isn't fair, and they 363 00:21:51,033 --> 00:21:53,807 challenged it. They said our bail -- the way 364 00:21:53,807 --> 00:21:56,453 our bail was set is excessive under the 8th amendment and 365 00:21:56,453 --> 00:21:59,519 the United States Supreme Court agreed with them and said, yes, 366 00:21:59,519 --> 00:22:03,750 bail was excessive because it was arbitrary, $50,000 was 367 00:22:03,750 --> 00:22:07,283 really pulled from a hat, it was higher than necessary to assure their 368 00:22:07,283 --> 00:22:10,637 return to court, and ultimately, it wasn't individualized. 369 00:22:10,637 --> 00:22:14,974 So, we can learn three things really from Stack, and that is 370 00:22:14,974 --> 00:22:18,983 that the right to bail is a right to actual release. 371 00:22:18,983 --> 00:22:22,553 And release should be the norm. Bail has to be individualized. 372 00:22:22,553 --> 00:22:26,945 That's the second thing. And bail can't be arbitrary. 373 00:22:26,945 --> 00:22:30,391 It has to be based on standards relevant to assuring the 374 00:22:30,391 --> 00:22:31,433 presence of the accused. 375 00:22:32,113 --> 00:22:34,588 Kathryn: Okay. So, we know the first case, Stack versus 376 00:22:34,588 --> 00:22:38,601 Boyle, was about release and so that was the first generation of reform. 377 00:22:38,601 --> 00:22:41,470 And so, there's a case we focus on for the second generation of 378 00:22:41,470 --> 00:22:43,119 reform, and what's that all about? 379 00:22:43,144 --> 00:22:45,074 Tim: That's United States versus Salerno, 380 00:22:45,074 --> 00:22:47,780 definitely dealing with detention. Because, back then, 381 00:22:47,780 --> 00:22:49,900 there were defendants getting out of jail and they were committing 382 00:22:49,900 --> 00:22:53,082 crimes. And people said we don't want those 383 00:22:53,082 --> 00:22:56,809 people out of jail. We want those people in jail. We want to detain those people. 384 00:22:56,809 --> 00:23:01,398 And there were arguments back and forth, can you do that based on 385 00:23:01,398 --> 00:23:04,563 a risk of something they may or may not do in the future and 386 00:23:04,563 --> 00:23:06,705 public safety? That was never a consideration 387 00:23:06,705 --> 00:23:08,319 before. Can we even talk about public 388 00:23:08,319 --> 00:23:11,074 safety at bail. All those questions were big 389 00:23:11,074 --> 00:23:15,196 important legal questions that were solved in that case, Salerno and the 390 00:23:15,196 --> 00:23:17,814 Supreme court said yes, you can enlarge your 391 00:23:17,814 --> 00:23:22,347 no bail bucket, you can base detention it on a prediction of risk to 392 00:23:22,347 --> 00:23:26,734 public safety, but Salerno was very clear in saying that if you do that because 393 00:23:26,734 --> 00:23:30,273 it's practically un-American to do it, you have to make sure of 394 00:23:30,273 --> 00:23:34,754 two things. First, is it got to be really, really limited and the 395 00:23:34,754 --> 00:23:37,004 second thing is it has to be really, really fair. 396 00:23:37,004 --> 00:23:41,142 The term they use is carefully limited, and realize this, 397 00:23:41,142 --> 00:23:45,685 carefully limited cannot possibly mean detaining people 398 00:23:45,685 --> 00:23:47,755 with money. Because when you use money to detain 399 00:23:47,755 --> 00:23:49,950 people, it's almost carelessly detaining them. 400 00:23:50,786 --> 00:23:54,421 Kathryn: Okay. So, as we synthesize this information, what are the 401 00:23:54,421 --> 00:23:59,485 combinations, the take-aways, Tim, from the combination of the 402 00:23:59,485 --> 00:24:00,641 history and the law. 403 00:24:00,641 --> 00:24:03,624 Tim: You, know, the history and the law are intertwined. I think it's helpful 404 00:24:03,624 --> 00:24:08,332 to know both. Because, you know, legal laws--changes to laws, lead to 405 00:24:08,332 --> 00:24:10,918 historical events and those lead to changes in laws. 406 00:24:10,918 --> 00:24:13,861 The two together, really tell us three big things. 407 00:24:13,861 --> 00:24:17,856 And the first, is as you're figuring out, money, secured 408 00:24:17,856 --> 00:24:19,777 money in America is our big problem. 409 00:24:19,777 --> 00:24:22,309 It's the problem we have been fighting with ever since 1900. 410 00:24:22,309 --> 00:24:24,271 We've gone through generations of reform to fix it. 411 00:24:24,271 --> 00:24:27,683 But, the law and the history also tell us our definitions of what 412 00:24:27,683 --> 00:24:29,442 things are, tell us what bail is. 413 00:24:29,442 --> 00:24:32,690 Bail is a process of release. Why do we have a thing called 414 00:24:32,690 --> 00:24:34,347 bail? It's so we can release people. 415 00:24:34,347 --> 00:24:37,304 Just like why do we have a thing called no bail? It's so we can 416 00:24:37,304 --> 00:24:41,232 have a process to detain people. And finally, the law and history come 417 00:24:41,232 --> 00:24:44,456 together to give us those three Ms. That tell us what we're 418 00:24:44,456 --> 00:24:48,394 trying to do, throughout this whole process is to maximize release, 419 00:24:48,394 --> 00:24:51,402 and at the same time, maximize public safety and court appearance. 420 00:24:51,402 --> 00:24:54,372 Kathryn: Alright, well then. let's talk really briefly about what are the 421 00:24:54,372 --> 00:24:57,886 major problems, then, with secured money bonds in the United States. 422 00:24:57,886 --> 00:24:58,721 And what are they, Leland? 423 00:24:58,941 --> 00:25:01,737 Leland: Well, really, we see problems on both ends, but what isn't often 424 00:25:01,737 --> 00:25:05,390 highlighted is the fact that money causes as problem on the public safety 425 00:25:05,390 --> 00:25:09,809 detention-end of things and an example of this, a horrific and 426 00:25:09,809 --> 00:25:12,999 telling example, is that in Washington state a defendant 427 00:25:12,999 --> 00:25:16,376 charged with child rape and assault on an officer was able to 428 00:25:16,376 --> 00:25:21,397 post $190,000 bond. Was able to obtain his release through that 429 00:25:21,397 --> 00:25:26,685 posting process, obtained firearms, drove to a local coffee shop, 430 00:25:26,685 --> 00:25:30,567 and unfortunately, murdered four police officers. 431 00:25:31,074 --> 00:25:33,664 Kathryn: And that happens more than just in that particular 432 00:25:33,664 --> 00:25:36,673 case, it happens all too often. And there's just the propensity for that 433 00:25:36,673 --> 00:25:39,730 to continue to happen. So, we have talked about the 434 00:25:39,730 --> 00:25:45,056 problems with money bail and the consequences of money bail. 435 00:25:45,056 --> 00:25:48,138 So, what are some of the solutions and what are some of the working 436 00:25:48,138 --> 00:25:49,987 models that we're gonna focus on, Tim? 437 00:25:50,103 --> 00:25:53,011 Tim: You know, I hope people focus a little on Washington D.C. because 438 00:25:53,011 --> 00:25:55,074 if you look at everything and what we are trying to achieve, 439 00:25:55,074 --> 00:25:59,598 they have created an in or out system that's based with no 440 00:25:59,598 --> 00:26:02,844 money, no secured money, and they get phenomenal outcomes. 441 00:26:03,106 --> 00:26:05,127 Kathryn: Alright, and as we conclude this segment on the 442 00:26:05,127 --> 00:26:09,078 history and the law, what are some of the take-aways from this 443 00:26:09,078 --> 00:26:10,160 segment, Leland? 444 00:26:10,336 --> 00:26:12,984 Leland: Well, one of the main take-aways is that pretrial 445 00:26:12,984 --> 00:26:15,837 justice systems really need to advance all three of those 446 00:26:15,837 --> 00:26:19,483 purposes of bail, all three of those Ms to align properly with 447 00:26:19,483 --> 00:26:20,515 history and the law. 448 00:26:20,731 --> 00:26:21,795 Kathryn: And, what would you add, Tim? 449 00:26:21,795 --> 00:26:24,461 Tim: You know, the legal--the law and history does not have to be daunting. 450 00:26:24,461 --> 00:26:27,716 You can read about it in two papers by the NIC, one is 451 00:26:27,716 --> 00:26:30,235 called "Fundamentals of Bail" and the other is "Money as a Criminal 452 00:26:30,235 --> 00:26:32,829 Justice Stakeholder." And if you read those, I think you'll know 453 00:26:32,829 --> 00:26:34,650 enough to get by, in terms of, both. 454 00:26:34,736 --> 00:26:37,038 Kathryn: Okay. And incidentally, if you look in your participant 455 00:26:37,038 --> 00:26:39,917 guide there are links to those resources in your participant guide, 456 00:26:39,917 --> 00:26:42,716 as well. And I think, you guys, have done a great job in 457 00:26:42,716 --> 00:26:45,015 teaching people a lot about the history of bail and the 458 00:26:45,015 --> 00:26:47,641 law, that I'm sure a lot of people did not know before 459 00:26:47,641 --> 00:26:51,886 this short segment. So, thank you for that. In a moment, we'll take what we 460 00:26:51,886 --> 00:26:54,965 learned in segment one about some of the foundational principals 461 00:26:54,965 --> 00:26:58,115 and what we learned about the history of bail and law in this segment. 462 00:26:58,115 --> 00:27:01,408 And then, we're gonna apply it to some operational issues. In the next segment, 463 00:27:01,408 --> 00:27:06,145 we're gonna focus on the elements of a high-functioning pretrial 464 00:27:06,145 --> 00:27:08,986 justice system. But first, we hear from professionals who 465 00:27:08,986 --> 00:27:13,141 comment on what is meant by pretrial justice and how they 466 00:27:13,141 --> 00:27:17,079 are building high-functioning pretrial justice systems. 467 00:27:18,163 --> 00:27:22,609 [music] 468 00:27:22,975 --> 00:27:29,109 Joel: So, pretrial justice can be defined as enhancing public safety, enhancing court 469 00:27:29,109 --> 00:27:32,578 appearance, enhancing release rates for the jail using our 470 00:27:32,578 --> 00:27:37,194 resources wisely, preserving constitutional rights of the 471 00:27:37,194 --> 00:27:43,694 defendant, and also, protecting public safety and providing the 472 00:27:43,694 --> 00:27:47,172 courts with some reasonable assurance that this defendant is 473 00:27:47,172 --> 00:27:48,165 going to appear again. 474 00:27:48,933 --> 00:27:53,632 Chief Justice Daniels: Among the things we're looking at in deciding how we 475 00:27:53,632 --> 00:27:58,709 can make more principled evidence-based decisions for release. Once we get 476 00:27:58,709 --> 00:28:04,185 away from this artificial, ineffective, unprincipled way of using how 477 00:28:04,185 --> 00:28:07,550 much money you have or how much money you can get or what kind 478 00:28:07,550 --> 00:28:12,143 of deal on payments you can make the bail bondsman as a 479 00:28:12,143 --> 00:28:13,913 condition of getting released. 480 00:28:13,913 --> 00:28:16,682 Tomaudrie: I'm glad we're finally able to pull ourselves up and 481 00:28:16,682 --> 00:28:21,574 sit at the table and discuss better ways of making our 482 00:28:21,574 --> 00:28:25,681 criminal justice system more efficient. They actually-- We have the credibility 483 00:28:25,681 --> 00:28:28,699 that maybe we didn't have years ago because we didn't have the 484 00:28:28,699 --> 00:28:32,512 evidence, you know, based off -- we didn't have a validated risk 485 00:28:32,512 --> 00:28:35,455 assessment tool, you know, years ago when I first started. 486 00:28:35,455 --> 00:28:41,411 We didn't have the data to back up what we saw on our end in the 487 00:28:41,411 --> 00:28:43,765 criminal justice system and what would work and what wouldn't 488 00:28:43,765 --> 00:28:47,616 work. So, I just think it's awesome that counties 489 00:28:47,616 --> 00:28:51,859 across the country are actually able to collaborate together to 490 00:28:51,859 --> 00:28:54,154 make the criminal justice system better. 491 00:28:54,178 --> 00:29:06,410 [music]