Okay.
This week for our classic interview, we're going to go back to when I spoke to Alec,
Kara Kotsanis about the bail bonds industry, which is a horrible, horrible industry, which
I've covered before.
And this is sort of in the context of the story.
We've covered a couple of times now with Shane Cavenaugh from Portland, Oregon about Saudi
nationals, typically students who are charged with crimes in the United States and ended
up being whisked back to Saudi Arabia evading justice and the contrast between those wealthy
Saudis and what is effectively a kid gloves treatment, uh, by virtue of the Saudi authorities
involvement compared to how the average person in particularly a poor and lower middle class
people, how they are treated, including by the bail bonds industry.
So back to my interview from February of 2016 with Alec Kerrick Kotsanis.
Take a look at this.
I'm joined today by Alec [inaudible], who's a civil rights lawyer dedicated to transforming
the American criminal justice injustice system.
Alec, we've been talking about bail and the bail bond system in the United States for
a very long time.
Let's sort of start at the most fundamental level.
When someone is brought in to court, what is the basis on which the amount of bail is
decided and whether there is even bail at all.
So after someone's arrested in all 50 states, they're, they're brought to jail and in most
circumstances they're told you're eligible for release immediately, but you have to give
us some money first.
And in some places that decision is based on a, a chart that is based purely on the
offense that the person has been charged with and other places they go before.
Some officers, um, magistrate, some judge and the judge just sort of picks a number,
an amount of money.
And typically that's happening without any inquiry at all into whether the person can
afford that amount of money.
That's interestingly not the case in the district of Columbia where I live in practice or in
any of the federal courts in any of the 50 states around the country.
In those systems, people are released prior to trial without having to pay any money unless
the government sit there, a danger to the community who are risk of flight.
And so in the federal system and in DC, decisions about whether a human being is kept in a cage
prior to trial are made based on evidence and about whether they're at danger rather
than based on someone's poverty.
But in all of the other states, um, whether you stay in jail after you're arrested by
the police, it depends solely on whether you can afford to pay bail.
And now explain how the bail bond system works.
As you mentioned, your ability to pay that bail, uh, may vary drastically and it often
does.
So talk about what service a bail bondsman provides to someone who has been set a bail
realistically that they cannot afford.
So in 46, we have what's called the commercial bail bond industry.
There are four states that have outlawed bail bondsman.
The United States and the Philippines are the only two countries in the world, but still
allow commercial bail bondsman.
What this industry does is it preys upon the people that are too poor to afford to pay
the bail that's been set by the court.
They come in and they say, if you give us a percentage of that amount, um, we will tell
the court that will cover the rest.
Now they typically, because they control so many state legislatures and, and local government
systems, they've typically passed rules that actually protect them even from having to
pay, um, at all.
Even if you don't show ups, they're risky, virtually nothing.
Um, what they then do is they tracked these people in these incredibly onerous, exploitative
contracts.
So sometimes they might say, you give us 5% of the money bail and then you agree to pay
us the rest at the highest allowable interest rate under law for years.
So you could be like some of our clients, you could be arrested by the police and then
you can be held in jail on a, on a bond you can't afford.
And then you go to a bail bondsman, you make a payment, and now you owe them money for
years.
And the very next day the prosecutor looks at your case and says, there is no crime here
or there's not enough evidence, and they dismissed the case.
Now you're stuck owing money to the bail bondsman for a case that was never prosecuted and this
is the way in which the bail bond industry transfers billions of dollars every year from
the poorest people in our society.
Those people that are accused of crimes and their families who can't afford bail to some
of the richest people in the country, the bail bond industry and the insurance companies
that underwrite them.
One of the, uh, incredible circumstances of this industry is that on the one hand, the
bail bonds industry sometimes likes to defend itself by saying, listen, if you're sitting
there in pretrial detention, it's going to be tougher for you to build the strongest
case possible to defend yourself when your court date ultimately comes.
At the same time though, Alec, that same industry is lobbying all the time to put more alleged
crimes under the list, qualifying for pretrial detention.
Unless you are able to pay bail, they're sort of creating a bigger and bigger market for
themselves, aren't they?
They are.
There are about 500,000 human beings on any given night in this country who are in a jail
cell because they cannot afford to pay bail.
That's the way they'd be able.
Industry likes it.
They want as many people as possible as potential customers.
So they're constantly lobbying state and local governments for more.
Another incredible thing that they do is they lobby state and local governments for other
policies that subtly help them.
So for example, in the state of Louisiana, if I'm arrested and brought to court for a
bail hearing, the public defender that represents me, the prosecutor that's arguing against
me, the sheriff that brought me there, and the judge that is making a decision about
my mail all take by statute, a percentage cut of the money bail, but set in my case.
And that statute was put into place by the bail bond industry to give everyone in the
system an incentive to keep bail.
Bond industry is thriving.
And that's the kind of perverse incentives that we're seeing all over the country, um,
with the bail bond industry now.
And it was really interesting.
Oh, sorry, go ahead.
No, no, go.
I was going to say what's really interesting about the point you just made is that'd be
up on industry likes to advertise itself as helping to release people.
And yet in our lawsuits after we have received them filed, we see a lot of fearmongering
by the Dale Bond Industry about, about how well if, if you, if you get rid of the bail
bond industry, you're going to remember that you're leasing all these criminals, which
is they're very, um, advertising slogan that they been going by for years.
What's fascinating about it and the reason why a lot of police and prosecutors and sheriffs
are really opposed to the bail industry is that if you believe that a person is a danger
to the community and you think that person could harm other people while they're awaiting
trial, why in the world would you release that person just because they have money?
If someone is a dangerous Predator, I would argue they're even more dangerous if they
have resources and money.
So the bail bond industry is advocating for a system that releases Robert Durst, but that
cages Sandra bland.
And that is absolutely absurd.
Do you have data nationally on what percentage of alleged perpetrators are not even offered
bail?
In other words, they're considered such a risk to society that bail is not even an option.
And then how many are offered bail but ultimately never pay it either directly or via bail bondsman.
And how many do pay the bail and get out?
Do we have some sort of sense of those numbers?
No.
And in fact, no one's keeping those numbers precisely because of incentives involved here.
And the bail bond industry doesn't want there to be decisions made about people's dangerousness.
They want people to be offered high money bonds on the, on the chance they could get
the money together to pay it.
So when, when courts all around the country in most states aren't ever making that determination
that someone is dangerous, they're just estimating.
If a judge thinks that a person is dangerous in a state that uses a lot of commercial money
bail, they'll just estimate in the amount of money that they think the person can't
afford.
So they'll say, you know, $1 million on the hope that the person can't pay it.
You know, that very unconstitutional obviously.
But that's what's happening in courts all over the country.
And so no one is keeping any kind of data right now on the question that you asked,
which is sort of what's happening to people that are, that are really dangerous and are
they being released on bail because they're rich and, and things like that.
So we don't really know.
All we know is that the money bail system is keeping hundreds of thousands of very low
risk, nonviolent and, and otherwise.
And offenders that we know through the data aren't likely to commit new offenses.
Um, while they're pending trial, I'm in jail just because they're poor.
I want to go back to something you sort of alluded to, which is the sort of general lack
of risks that bail bondsman have fruit for losing money.
They claim right that they deserve to earn this sort of commission, typically 10% for
helping people get out of pretrial detention because they are taking on risk, right?
If the alleged perpetrator
disappears after they've been bailed out by the bail bondsmen bail bondsman is on the
hook for their entire Bale.
The reality though is that these bail bondsmen individually have insurance and that if you
look at the numbers, it is very rare that they actually are out anything close to 100%
of the bail for any individual alleged perpetrator.
They have a very solid insurance system in place.
It's very true.
All of those empirical claims or the bond industry are complete fabrications.
The other really interesting point is, um, what they've negotiated for, and a lot of
states and a lot of jurisdictions is a grace period.
So they don't have to, even if the person does skip out, they don't have to make that
payment for two, three, four years.
Right.
And so what you see then is they rely on the police.
Um, it's very, very common in our society that the police will then pick somebody up
on a warrant because we've got the US marshals and local police and sheriffs who are out
looking for people if they ever skip core.
And when those people are then brought back in by the police, not by the bail industry,
the bail industry doesn't have to pay.
Um, so they, they sort of free ride on law enforcement to, to assure themselves of never
having to put any risk up.
And as you say, even on the very, very, very small number of cases where they are exposed
because they, the person skipped court, uh, they have insurance to protect themselves
from that.
And it's actually those insurance companies, not individual bail bonds people, but those
insurance companies that are providing a lot of the lobbying and the money and the financial
support for a lot of these, these terrible policies.
Okay.
And I think there's another example.
It's yet another example where they're sort of capitalism for the profits while you socialize
the risk.
That's exactly right.
And, and what's really encouraging now as you're seeing law enforcement leaders all
over the country, the Department of Justice, federal prosecutors, local sheriffs, national
associations of police officers who are speaking out against this because the system makes
absolutely no sense.
Um, it does not make sense to release people who might be dangerous just because they're
rich.
It does not make sense to hold people in a cage who might not, Ugh, oh, that's because
they're poor.
We've been speaking with Alec [inaudible] civil rights lawyer.
Thanks so much for talking to us about this really important issue.
Thanks for having me.