Vision For Justice: Pretrial Justice
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Vanessa: Welcome to “Pod for the Cause,” the official podcast of The Leadership Conference on Civil and Human Rights and The Leadership Conference Education Fund, where we expand the conversation on the critical civil and human rights issues of our day. I’m your host, Vanessa Gonzalez, coming to you from beautiful Washington, D.C. The Leadership Conference in partnership with the Civil Rights Corps release Vision for Justice 2020 and Beyond: A New Paradigm for Public Safety. This comprehensive platform provides actionable policies aimed at transforming our criminal legal system and changing the way we approach public safety in this country.
Vision for Justice 2020 and Beyond has been endorsed by 117 civil and human rights and social justice organizations, a number worth noting because of the reach it represents. The platform offers critical policy guidance for drafting robust criminal justice reform agendas such as amending the pretrial process, public defense, prosecution, policing, and the criminalization of poverty. Today, we’ll be discussing pretrial justice, a system that isn’t serving the goal for which it was designed, to ensure that people appear for their court dates. Pretrial costs can include things like cash bail. The high cost of bail can be devastating to individuals, their families, and their communities, and it puts a price on freedom.
We’re gonna be talking about the need for a pretrial framework that dramatically reduces pretrial detention, ends racial and other inequities prevalent in the current system, and abolishes wealth-based discrimination throughout the pretrial process, all based on research and evidence-based practices that helps most people make their court dates successfully. Today, we are so excited to be joined by Congressman Ted Lieu, who has represented California’s 33rd District since 2015. Congressman Lieu is serving in his fourth term in Congress and currently sits on the House Judiciary Committee and the House Foreign Affairs Committee.
He was also elected by his Democratic colleagues to serve as a co-chair of the Democratic Policy and Communications Committee. He is a former active duty officer in the U.S. Air Force and currently serves as a colonel in the reserves stationed at Los Angeles Air Force Base. In Congress, he has established himself as a leader in the environment, cybersecurity, civil liberties, government ethics, and veterans’ affairs. Hello, Congressman, how are you, sir?
Congressman Lieu: I’m great, Vanessa. Thank you for having me on the show.
Vanessa: Yeah, of course. So let’s just get the ball rolling because I know people really wanna hear your thoughts on this. And I think people also wanna understand why is this such a big issue when you talk about criminalization and really, what is pretrial. So to get going, can you tell us a little bit about what is the cash bail system and why was it put into place?
Congressman Lieu: Sure. On any given day in America, there are hundreds of thousands of people sitting in jail or prison, not because they’ve been convicted of anything but because they can’t pay the fee to leave jail or prison. Originally, bail was put in as an incentive for people to show up for their court hearing dates and if you showed up, then you would get the money back that you put into bail. What has happened over time is you have these bail bondsmen who would take a cut of that money and you wouldn’t get that money back, they would put the bail for you.
So you might pay 10% of their very large bail fee, if you showed up for a court hearing, you would get 90% back, they would get 10%. These percentages vary depending on the jurisdiction. In some places, you won’t even get money back. Some local jurisdictions have basically set a fee for you simply to leave jail or prison and those places are being sued because folks think that that is flat out unconstitutional.
Vanessa: So this seems like another way that the criminal justice system has been monetized. There’s a whole other system that is making money off of the need for people to have access to cash.
Congressman Lieu: That’s a great point. Bail is inherently unfair to people who are poor. Studies also show that it has a disproportionate effect on minorities. And what ends up happening when you look at these studies is that folks who can’t pay the fee to leave jail or prison are exactly the kind of folks who get into huge recurring troubles because they can’t find childcare, they don’t know how to pay their other bills, they lose their job, and it has this huge cascade of effects. And what ends up happening is they end up pleading guilty simply to leave jail or prison. So this has really turned the presumption of innocence on its head.
Vanessa: Can you give us a sense of how much money we’re talking here? I think there’s been studies across the board that most Americans don’t have enough money in their savings for an emergency. And I think the assumption is that’s folks who have a job, who can maybe afford certain just standards of living. So when you go into this system, is there a range of how much your cash bail could be?
Congressman Lieu: It will depend on the crime that you allegedly committed. The study you’re referring to showed that a seventh of Americans cannot handle a $500 expense that they were not expecting. But you can imagine the problems for folks who are put into jail or prison and then told to pay a fee to leave. There’s also something I want folks to consider, which is, there’s zero rationality to this. There’s no study I’ve ever seen that shows that somehow how dangerous you are or your risk of fleeing has anything to do with how much cash on hand you happen to have access to. It turns out that you have rich people who can be very dangerous and poor people who are not dangerous at all.
So some jurisdictions, like the red state of Kentucky as well as Washington DC have essentially eliminated money bail and gone to another system where they look at how dangerous you are, your risk of fleeing, and they take money completely out of the system.
Vanessa: Before we talk about the removal of cash bail, it’s still, like you said, for majority of states, it is still in place. So how is that increasing and contributing to mass incarceration, particularly for black and brown folks?
Congressman Lieu: So if you can’t pay the fee to leave jail or prison, you’re taking up space in the jail or prison. It’s also costing the taxpayer’s money. And because of a disproportionate effect on minorities, you’re seeing over-incarceration of minorities. And this is based on again, how much cash on hand they happen to have access to. It is a very unfair system. It puts profit and money into notions of freedom, and I think money should never be linked to freedom. And you have an entire industry, these bail bonds companies, whose sole mission is to have enough people who are arrested and charged so that they can get this fee to have them leave jail or prison. We need to reform this system completely.
Vanessa: Wow. This is a racket. This reminds me of payday loans somewhat and when poor people, people of color, myself included, in the past, you just need access to cash and so you go to the place that will give it to you and then you wind up paying astronomical fees and there’s huge punishments if you miss it. In this case, if you miss a payment, you’re staying in jail, right, or you go back?
Congressman Lieu: That’s correct. And depending on the contracts, there may be additional penalties. You are completely at the mercy of the bail bonds company.
Vanessa: Wow. In addition to everything else you have to worry about, right, in these situations. So I think we have people in this country who may feel like you need to put some money up so that you have skin in the game, right? So that you will show up with the idea that that will continue to hold people accountable. But then on the other side, we have an awakening of folks that are feeling like, to your point earlier, like we need to remove cash from a conversation about freedom. That should be a different conversation. So how can we, one talk to those people that feel like a cash bond makes you more accountable? And then two, what can we say to people who wanna get more involved in this issue?
Congressman Lieu: Those are great questions. So it turns out that places that have eliminated cash bail such as Washington, D.C. and Kentucky, their rate of return for people is about the same as places that do have cash bail, because people already have skin in the game. They are expected to show up to a court hearing and if they don’t show up, bad things happen to them. So most people actually want to show up and they want to make sure that the judge hears what they have to say. And folks who don’t have money to pay for cash bail are exactly kind of folks who can’t actually fly somewhere or spend a whole bunch of money hiding out in [inaudible 00:08:53].
The evidence shows that folks who don’t have enough money to pay cash are not the kind of folks that would actually flee in the first place. And that’s why when these jurisdictions shifted to a system where they eliminated cash bail, they saw about exactly the same rates of return as places that have cash bail. It also turns out that if you simply do reminders to people, just give them a phone call or send them a text, that has more effect of getting them to show up for that court date.
Vanessa: That makes sense. People want to do what they’ve been asked to do, I think, and you’re adding on the presumption that they don’t maybe when you’re adding in that cash bail perspective, and then you’re putting them at greater risk. So how can we start to explain this to more people? And then, is this a local issue? So would states’ municipalities need to make these changes? Can we do anything at the federal level? How do we get this ball really rolling?
Congressman Lieu: I think Abraham Lincoln had it right when he said that public sentiment is everything, within, nothing can fail, without it, nothing can succeed. So I want people to understand their power to shape public sentiment. Social media is free. So if they write interesting posts, they could affect a voter in Florida or in North Carolina or in Oregon, figure out writing letters to the editor. It is true that many people do write letters to the editor, it’s also true many of them come from the same people. So if you start writing, and eventually, you’ll be able to change hearts and minds and you can affect this issue at both the local and federal level.
In Congress, I’ve introduced legislation to try to shift states away from money bail by giving them incentives in the form of grants to help them go to a bail system that doesn’t have money involved. Local jurisdictions can simply decide by themselves to just shift to a no-money bail system. The state of California, for example, actually ran a ballot proposition to try to reverse what the state legislature had done to go to a no-money bail system. So you see this battle happening among the various states, some have been successful, some have not. But as long as we keep pushing, I do think that over time, more and more places will switch to a system that doesn’t have cash money bail because of all the problems associated with it.
Vanessa: Oh, that’s great. So people can actually engage in this at all levels and start pushing their local municipalities, their cities or counties, you name it, whoever is in charge of that piece of the work all the way up to you all in Congress to try to have this removed?
Congressman Lieu: That’s exactly right. Some counties, for example, run their own jail systems. Their county board of supervisors could simply decide to eliminate cash money bail if they felt like it. So this could happen at the local level as well at state and federal level.
Vanessa: That is really important because here on “Pod for the Cause,” we continuously tell folks, “Don’t think about these types of issues only every four years. Don’t think about voting only every four years, that you have to really pay attention to your state and local elections because all of these things impact people’s lives directly.” And so this is another issue that folks should add to their laundry list of how their state and local electives can impact their lives daily. Like we said at the beginning of the show, this episode is part of our Vision for Justice series and one of the staples of the Vision for Justice platform is imagining a world that is different. Let’s say that in 50 years in the future, say our country has gotten rid of this cash bail system, we’re looking to really reform pretrial justice or improved trial systems, what would our country look like?
Congressman Lieu: Well, you’d definitely be saving taxpayer funds because you wouldn’t have all these people sitting in jails in prison because they can’t pay a fee to leave. So we can reduce the over-incarceration of particularly minorities. At the same time, you would have eliminated an entire industry whose sole job is to inject profit into the system. And then you would have less people who felt like they had to plead guilty simply to leave jail or prison, so you would be able to protect people’s innocence as well.
Vanessa: And can we talk a little bit about how all of this rolls downhill? So as you have laid out a beautiful vision for 50 years from now, it really goes in line with some of what our other guests have also laid out. One of the main pushers of the criminal justice system was actually not cash, was not money, and was not some of these systems that are set up to trap black and brown communities and people of color, that we would actually see a bigger investment maybe in these communities. We would see the fuller potential of people who now find themselves in jail because of difficult situations. And so their idea of cash and greed, to be honest, is starting to come through when we talk about the vision for justice.
And so when we talk about how this rolls downhill, in previous episodes, we’ve talked about how the incarceration of particularly black men within the community, how that impacts the children, how that impacts the safety of the community, because now, there’s men who are not present, they’re not able to work jobs because they’ve been placed away in prison, those types of things. So can you tell us a little bit, maybe just a scenario of what happens to someone when they can’t pay that cash bill? Like in real world terms, what happens to them?
Congressman Lieu: Depending on this situation, it could be really bad. So let’s say you’re working at an hourly job, they’re likely going to fire you if you sit in jail for 30 days, right? If you have to have your children taken care of, how would you do that? You might not even know how you’ll be able to do that. You might not be able to pay your rent. There’s all sorts of things you just simply won’t be able to do if you’re sitting in jail or prison. That’s why we have to work very hard to get these systems to change as soon as possible because you have hundreds of thousands of people sitting in jail right now who are having these huge cascading effects happen to them simply because they can’t pay this fee to leave jail or prison.
Vanessa: This is just ridiculous, but it really gets at the intersectionality of this problem. Like you said, you’re gonna lose your job. I mean, you have to explain why you don’t have a job for a certain period of time to your next potential employer. You could find yourself homeless because you can’t pay rent. And then to your point, what happens if you have children? How do you prepare them for that? Who takes them if you don’t have any type of support system? So in Congress, are you all looking at how all of these things connect? Is that an option?
Congressman Lieu: The way that we’ve structured this legislation, one of them sort of has a carrot approach, which is we will provide additional funding in terms of grants to states to help them transition to a system without money bail. The other is approach where we’ll say, “We’re gonna cut off grants to you if you don’t switch to a system that removes the money bail system.” So we have both bills that we’re trying to get passed into law.
Vanessa: That’s great. And with the intention being, okay, we’re gonna give you these grants to help you cover some of those other costs that you’re saying you need funds for?
Congressman Lieu: Exactly. So you do have to spend money to transition to a new system. You have to train people, you have to do a lot of different sorts of things to make sure that the system works correctly. And again, we have great models. You’ve got Washington, D.C., you have Kentucky, you have other local jurisdictions that have done it and done it well, but you do need some funds to transition to a new system.
Vanessa: That totally makes sense, and it’s respectful of all the states’ arguments that I know that you all will hear. So it sounds like you’re really thinking this through and saying, “Okay, here you go then.” When we talk about some of the pushback, you talked about public sentiment. I wonder, though, and myself included, there’s a little bit of an education gap. I think when you deal with the criminal justice system, a lot of folks have first-person interactions with that and they understand, “Okay, cash bail, I’ve gotta have this much money get out or else, I don’t get out. Someone’s gotta help me, not help me.” But I don’t think, and I could be totally wrong, so I would love for you to tell me I’m wrong, that people really understand what a pivotal moment that idea of bail is for folks.
I think when people think about changes to criminal justice, they think about sentencing, they think about prison conditions, right? They think about these really large scale things and they don’t necessarily think about the bail component. So I think this conversation really highlights what folks may see as something small within this larger system can really just change people’s lives, like you said. How can we start really educating the public on the impact of this particular piece of the criminal justice system?
Congressman Lieu: That’s a great point you’re making. Most people don’t walk around thinking about bail. That is not an issue that crosses people’s minds most of the time. So first of all, thank you for doing this show. Thank you for highlighting this issue. And a lot of this is simply about awareness. A lot of folks don’t think about bail but when you explain it to them, they go, “Oh, that’s messed up.” And so by highlighting this issue, and again, with public sentiment, you can get people to start thinking about bail and then they start taking action at their local level or even at the federal level to try to change it.
Vanessa: Yeah. Because I think when we see on television, you know, we will see those trials or we’ll hear something about a celebrity or someone who did something and their bail is like millions of dollars. And I think some of us are like, “They can pay that anyway. Like, that’s nothing for them, right?” And I don’t know that we necessarily translate that to the everyday person who can get caught up in the system.
Congressman Lieu: Exactly. There are, again, hundreds of thousands of people right now who cannot leave jail or prison, not because they’ve been convicted of anything but because they simply don’t have the cash on hand to pay the fee to leave jail or prison.
Vanessa: And how long are they able to be kept in jail or prison? What if they just cannot ever pay this?
Congressman Lieu: Well, so eventually, you would have the court hearing and you would go through the different procedural steps for whatever crime you’re alleged to have done. So at some point, they will have that hearing and they will go through a trial if that so happens to be but that could take months and months and months.
Vanessa: Wow. And that’s all dependent again, on the judicial system, right, and what their calendar looks like. That’s a lot to have someone’s life just kind of hanging out there.
Congressman Lieu: That’s correct. And again, we are depriving people of their freedom because of how much cash they have access to. That is completely un-American, it is completely unfair, and just needs to be changed.
Vanessa: That is a really strong sentiment, I think, to kind of wrap us up on in that our collective freedom, everyone’s freedom should not have a price tag on it, that it seems arbitrary certainly and that requires us to lose all of the other pieces of our lives potentially.
Congressman Lieu: That’s exactly right.
Vanessa: That’s embarrassing. That should not be the case. Congressman, I wanna be respectful of your time so I wanna give you the floor and see if you have anything else you’d like to say to folks. Again, this is something that we’re really deep-diving into in our Vision for Justice series. And so we’re gonna be talking to other experts, other elected officials such as yourself about what can we really do along each phase of this, again, how we’re highlighting some of these pieces really specifically so that folks start to understand them. So anything that you would wanna leave folks with?
Congressman Lieu: I wanna thank, again, you for highlighting this issue and I encourage folks to read about bail, it’s really easy to just search the internet and read the articles about it, and then look into your local jurisdictions and see if you can just get a change locally or at the state level or you can lobby your member of Congress or U.S. Senator to change at the federal level.
Vanessa: And what is the bill that you introduced?
Congressman Lieu: We’ve got the Pretrial Integrity Act. Hopefully, we’ll get that curd in Judiciary Committee, and that’s one with the carrot approach, where we will provide states with grants to shift to a system without money bail.
Vanessa: Got it. Okay, so House Judiciary, that’s where we should hope it lands, and then it will get its hearing.
Congressman Lieu: That’s the hope. Yes.
Vanessa: That’s the hope. Thank you, Congressman Lieu. We are so appreciative of your voice and advocacy.
Congressman Lieu: Great. Thank you so much.
Vanessa: Okay, y’all, you heard how you can get involved in this really important issue and the time is now. The Leadership Conference has endorsed the previously introduced legislation, such as the No Money Bail Act and the Pretrial Integrity and Safety Act by Congressman Lieu. So go on and reach out to your elected officials and tell them that you support it and they should too. Hurry, go now. Coming up, I’m turning it over to my co-host, Sakira Cook, the senior director of the Justice Program here at The Leadership Conference, to continue this vital conversation. Welcome, Sakira.
Sakira: Thank you, Vanessa, and thank you, Congressman Lieu, for the insightful and powerful conversation. We have some amazing guests for our next segment where we will continue the conversation on transforming our pretrial justice system. I’d like to welcome DeAnna Hoskins, president and CEO of JustLeadershipUSA, Katherine Hubbard, senior attorney at Civil Rights Corps, Chesa Boudin, the district attorney of San Francisco, and Sharone Mitchell, public defender of Cook County, Illinois. Hello, DeAnna, Katherine, DA Boudin, and Sharone.
Sharone: What’s up?
DA Boudin: Hey, there. Great to be with you.
Katherine: Hi, Sakira.
Sakira: Thank you all for joining us. I’m so excited to get into this discussion. DA Boudin, I wanna start with you. Based on your experience, both as a public defender and now as a prosecutor, can you explain for our audience, the connection between bail practices and the broader issues within our criminal legal system?
DA Boudin: Absolutely. And, you know, let me just take a step back, and for folks who aren’t already super familiar with money bail, just describe how it works in most parts of the country. As soon as somebody gets arrested, in almost any jurisdiction from coast to coast, from north to south, in the United States, you can buy your way out of custody. You can buy your way to freedom simply by going to a for-profit corporation, giving them a nonrefundable payment, and having them make arrangements with the court or the sheriff for you to be released. That’s a system which does two really problematic things.
First of all, it undermines public safety by allowing people who are wealthy to buy their way out of jail without regard to the risks they present. And second of all, it undermines the promise of equal protection under law by depriving people of their liberty based on their poverty rather than based on risk. In San Francisco, we’ve tried to move away from that practice, and I’m proud that my office was the first one in the country to prohibit my district attorney, assistant district attorneys, my lawyers, my staff from going into a court room at that first court appearance, lawyers would call it arraignment, and asking the judge to put a price tag on freedom.
We believe if someone is so dangerous, that they should not be released from custody, then we should ask the court to hold them without regard to how much money they or their rich uncle may have. And if someone is not so dangerous, if someone can be safely released pending trial while they’re presumed innocent, while the charges against them are merely allegations, then it shouldn’t matter whether they’re rich or poor, they should be released with appropriate non-monetary conditions. Now, you asked a question that’s really important, Sakira, what does this have to do with the broader inequities and injustices in the American legal system?
Well, if the core fundamental decision about whether someone is gonna be incarcerated or released while they’re presumed innocent is gonna be based on their wealth, that tells you a lot about the discrimination baked in to every step of what comes next. And of course, we see in jurisdictions all across the country, that if people are incarcerated pending trial, usually because they’re too poor to buy their freedom, because anybody with the money is bailing out, you know that for sure. If you are incarcerated pretrial, you’re more likely to waive your rights, you’re more likely to plead guilty, whether you’re guilty or not, and you’re more likely to be sentenced to incarceration once you do plead guilty as compared to those folks who have the privilege under this wealth-based system of fighting their cases, of asserting their constitutional rights from the comfort and safety of their own homes.
Sakira: I mean, what you’ve described, I think, for our audience, really is at its core, you know, the problems with our system and how it has turned the fundamental premise of innocent until proven guilty on a test, right? Like, we no longer really have a system that functions in that way and there are reverberating effects on people’s lives and individuals. And as a prosecutor, you’ve taken a different approach. So can you talk a little bit about that, what you view the role of prosecutors are in transforming our pretrial justice system to be more progressive in their approaches and ideologies around these issues?
DA Boudin: It’s really simple. Prosecutors swear an oath to do justice. And unfortunately, around the country, a lot of prosecutors focus on securing convictions rather than doing justice. You know, it’s really clear that if you’re able to secure a pretrial detention, then you’re gonna be able to secure more convictions. People are gonna waive their rights and you’re gonna have to do less work as a prosecutor to get people to plead guilty to crimes. Now, we wouldn’t file charges in my office if we didn’t believe they were true. We wouldn’t file charges if we didn’t believe we could prove them. But that doesn’t mean that we wanna coerce guilty pleas. That doesn’t mean that it’s a just outcome to have a defendant incarcerated because of their poverty, waive their rights to test the evidence that we have against them.
We want defendants to waive their rights when that’s in their best interest and when they have the opportunity to vigorously assert their rights. And if they want to assert their rights and we go to trial and we lose, that’s what the facts showed. That’s what the evidence led to. We believe in our juries in San Francisco and we don’t want people to waive their rights simply because they’re poor and incarcerated as a result of their poverty. We need to get back to basics as prosecutors and remember that this is about doing justice, not about securing convictions at any cost.
Sakira: Katherine, you have spent your entire career litigating bail cases across the country. How has litigation advanced transformation within our pretrial justice systems? Can you describe the human cost of pretrial incarceration to individuals and their families?
Katherine: So litigation has played an important role in reforming pretrial justice systems around the country. Litigation has resulted in injunctions requiring jurisdictions to overhaul their pretrial detention systems. It has resulted in settlements like the one in Harris County, Texas, where the county implemented numerous reforms, most significantly, a new bail policy requiring the immediate release of most people arrested for misdemeanor offenses without any payment of cash bail. And litigation in California and Nevada has resulted in state Supreme Court rulings, such as the recent country decision in California holding that the pervasive practice of setting money bail without regard to an individual’s ability to pay and without making findings about whether the person actually needs to be detained pretrial is unconstitutional. And that has resulted in statewide changes to bail practices in California.
So litigation is moving the needle in some really important ways but we also know that litigation alone is not enough to create lasting change and that creating fundamental change to the culture of bail setting requires a whole movement of various tools, litigation, policy, and most importantly, community power building. And as for your question about the human cost of pretrial detention to individuals and their families, that cost is really quite devastating. People who are detained pretrial can lose their jobs, lose housing, lose custody of children, families lose the much needed income of that person who’s incarcerated, and also suffer emotional harm and stress from having their family members taken away from them.
Once inside the jail, people awaiting trial are exposed to increased risk of contracting infection or disease, of being assaulted, and an increased risk of death in general, and particularly, death by suicide. And another problem within the jails is that jails often lack adequate resources to address people’s physical and mental illnesses. Another thing to note is what DA Boudin mentioned earlier is that being in jail pretrial has demonstrable negative impacts on a person’s criminal case. They’re more likely to accept a plea, more likely to be convicted, more likely to receive a longer sentence as compared to someone who’s free pretrial.
One last thing to note is that if families are able to scrape together the money to get their loved one out of jail, that money almost always goes to a bail bond company, which means that the family is paying a nonrefundable fee to a private company, and these fees are not only a real hardship for the families but also represent a significant transfer of wealth out of communities that tend to be poor and communities of color and into the hands of insurance companies.
Sakira: DeAnna, I wanna go to you. You know, Katherine talked about the human impact, the side of this that we often don’t see, right, when we think about these issues. And JustLeadership has done amazing work around the country to bring to fore, really the conditions of confinement in jails and prisons and also to close jails and prisons around the country because of these types of issues. Can you talk about the intersection and the connection between pretrial and justice and these campaigns?
DeAnna: Thank you, Sakira, thank you, Katherine and DA Boudin as well. So at JustLeadership, being a national organization that was founded by and operated by individuals who have been directly impacted by the criminal justice system, what I learned immediately coming to JustLeadership was that we were fighting to have our voices elevated to talk about these issues but we never really focused on the importance of pretrial and bail reform till we started looking at it from exactly the perspective that Katherine DA Boudin talked about. And I think for me, coming to New York, and we were leading the campaign to close Rikers, and the only way we could close Rikers was change bail reform, because Rikers is the largest jail system, meaning 98% of the people there are pretrial, having not been convicted of anything.
And then in order to reduce the population, one of the things we had to focus on was bail reform. And I think it was 90 days into this position, and I’m on the Capitol steps talking about the harms of pretrial, and I started getting death threats, right? I started getting death threats from bail bonds. And it dawned on us that we were infiltrating people who have profiteered off of poverty, right, have profiteered. And I wanna step further, because I think we can’t have these conversations without just being direct of the continual legacy of slavery. And I looked at bondsmen as being on the slave auction block, right? You put the person’s family member on a block and say, “I’ll sell them back to you at a price,” their freedom, kind of what DA Boudin said.
But then we look at Kalief Browder, which was the straw that broke the camel’s back for us to launch this campaign, of the harms of being held pretrial for two years for the accusation of stealing a book bag and the mental stress that it took on him that he eventually took his own life. But the fact that his mother and his family couldn’t afford $1,000, right? And when you look at the cost of living, you look at the majority, Rikers had a population of 5000. If 98% are sitting there because they can’t afford $1,000 bond, and not even that, not having the ability to afford to take whatever percentage to a bondsman because we need that, we need that for gas and electric and all of that.
So for us, the campaigns really focus on, one, where is our presumption of innocence? I think it goes to that old age saying, “A certain segment of population that’s impoverished is guilty till proven innocent,” right? We don’t get that luxury of innocence until proven guilty and our pretrial system proves that to us. Also, what Katherine talked about is human warehousing. We’re literally just sitting there. A lot of local jails lack programming to address any issue that may have caused my interaction with the criminal justice system. Not only that, the inability to actually meet your needs, the high risk of diseases, what really dawned on us was that COVID, I think across this country, we got information and data we would have never have been able to have without COVID of how releasing people pretrial does not increase crime, right?
I think we saw that with local jails. But as soon as the pandemic started to slow down, jail populations immediately started upticking at a rate back to normal. My push to advocates to build this coalition, to build community power is we got data and information that we have to push with our local officials and our state representatives to show that releasing people pretrial, cutting your jail population does not increase crime, and we’ve allowed other people to control our narratives and it’s time for us to control our narratives.
Sakira: One of the main premises in the vision for justice platform is that true public safety does not lie in criminalization, incarceration, further harm, but really lies in addressing social problems and social ills through other systems, right? Through investing in community-based programs and other systems that will help people who are having challenges. Whatever that challenge might be, a challenge that’s caused by poverty, a challenge that might be caused by a mental health disorder, or something to that effect. And we know the majority of the people who are sitting pretrial are there for very low-level offenses, right, and simply cannot, in many instances, cannot afford bail.
Sharone, I wanna turn to you and talk a little bit about, you know, as a public defender, public defenders play an important role in our system, supporting individuals who come into contact with the criminal legal system and helping to advocate on the behalf. Can you talk a little bit about that role in the context of pretrial justice and how you have worked in your work to upend the system that has consistently incarcerated people who have not been convicted of a crime?
Sharone: Yeah. I wanna first off thank my esteemed guests. I don’t know how you guys found me but being a group with this crew is super exciting, you know. Again, my name is Sharone Mitchell Jr. I’m a public defender of Cook County. Cook County is the county that incorporates Chicago and its suburbs, so there’s some stuff going on. I don’t know if y’all heard. It is super exciting to work as a public defender and I think that we have a dual role. I think the traditional role that people think of, providing the highest level of advocacy for the folks that we are assigned to represent. As the DA talked about, pretrial incarceration really kind of spins the idea of innocence till proven guilty and really kind of affects the outcomes of what happens to a person.
So people are more likely to plead guilty, more likely to serve a longer sentence if they’re in pretrial incarceration. And we know that, you know, things like money bond ratchet that incarceration up. So first off, being a great advocate in the courtroom but also, we’re in an incredible time now where we are seeing progressive structural changes to our legal system and the public defender’s office is typically an office that has a monopoly on the stories, the data, the narratives, and I think it’s on us to be able to tell those stories in that policy conversation as we’re in this really kind of tenuous time. Where things could go, we move further and further and further with these changes or we can roll back, get back to the point where people are blaming all the failures of the status quo on reforms that have happened or are soon to happen. You know, we have that dual role.
Personally here in Cook County in Chicago and the suburbs, the public defender’s office shares a close relationship with advocates that have fought for change here in this state. I don’t know if y’all heard, we’re really excited about it, 2023, we passed a law that’s gonna end money bond in the state, but more importantly, that is going to be a structural change to how we decide what happens to people pretrial. So it is built in money bond but the money bond is like the secondary benefit to the primary benefit of reducing pretrial incarceration and reducing the power of the state to incarcerate people before there’s been any evidence submitted against them. So the public defender’s office, me coming out of that movement and coming into this office in about, you know, I’ve only been about three months, it is to continue to forge a strong relationship with the advocates and the organizer that made it happen.
We have a ton of incredible stakeholders that helped pave this path forward from the Chief Justice of our Illinois Supreme Court, to our county board president, to our state’s attorney, to a number of legislators, even some people who used to be organizers, but it was people, it was organizers. It was people without titles in their name that helped to make this happen. Whether we’re talking about rallies or phone calls or how are the people in organizing. So the public defender’s office needs to serve as a megaphone to increase the power in the voice of the people that may be [inaudible 00:38:32]. So we need to be a friend in the courtroom and an advocate in the courtroom, but also a friend and an advocate in the public discussion so that we can seek more and more and more when it comes to the liberation of our people.
Sakira: I just wanna say, one, kudos to you and the work that you are doing out there with the bail coalition out in Illinois. We’ve all heard about the amazing success and I think that is the wave, I hope and I know that is the wave of the future. That is what we’re all, I think, pushing towards. DeAnna, I wanna come back to you. I know you have something you wanna share with the group.
DeAnna: In this time, what we’re starting to see, and I think everyone is seeing it, colleagues in Chicago, California, New York, Washington DC, we’re seeing an uptick in what’s considered violent crimes, right? And because we have utilized, even around my pretrial talks, that’s the biggest fight we get in is nonviolent versus violence once it gets down to it. And I’m struggling, and I wanted to pose this, especially to DA Boudin and Sharone, is our local prosecutor has launched a war on gun control, on gun violence, right? What we know from the history of this prosecutor, that’s an all-out war on black men in certain communities, casting a wide net. And one of the comments that he made was, there will be no rule for plea bargains. And I’m kind of with DA Boudin, there’s always gonna be rule for plea bargains because people are gonna sit there and be afraid to go to trial and whatever you offer them is what they’re gonna take.
But I guess I wanna ask, how do you approach that when the public is in this state of fear? Because that’s all the media is reporting, that’s all that is appeared to be happening, but this is a root cause and I wanna say, residual of the pandemic as well. We know this happens but how do we start to have that conversation, especially from a DA’s perspective and a public defender who would have to defend these individuals? How do we start to have that community conversation because I’m walking into rooms of community members who still aren’t at this heightened fear level and thinking this is the solution? Incarceration never kept us safe, right? Police never kept us safe. How do we start that conversation if you were in my shoes?
Sharone: I got some thoughts for our listeners. The state’s attorney, the DA gets to go first before the public defender, so has to honor [inaudible 00:40:51] tradition but I will stand to rebuttal.
DA Boudin: Beauty before wisdom, my friend. Beauty before wisdom. But, no, I mean, I actually…I expect that we’re gonna agree, in large part, on our answers even though we do sit on opposite sides of the aisle because at the end of the day, we all wanna live in safe and just communities. And one thing that we all know is the safest communities in America are the ones that spend the least on incarcerating members of their community, are the ones that spend the least on police presence in their communities. You don’t see visible police presence on every corner of the wealthy white neighborhoods in the suburbs of Chicago, for example.
And so that’s part of the answer is remembering that incarceration doesn’t make us safer in the long run and more incarceration certainly does not equal more safety. Now, that doesn’t mean we don’t have accountability when we deal with serious crimes, we do, and incarceration is part of the solution in the short-term to how we respond to ongoing violence in the community. But this idea that we’re gonna say, “We demand the maximum punishment in every single case, i.e., we refuse to negotiate pleas,” that’s actually what prison abolitionists suggest as a way to shut down the entire system. It’s kind of ironic to hear that from folks who are so called tough on crime. It’s not very smart on crime. It’s not very efficient with resources.
And the other thing that’s so critical to remember when it comes to guns, we spend all this energy policing black and brown young men, prosecuting them, locking them up for possession of guns, we’re not doing anything to address the root of the problem, which is why do people feel the need to carry guns to feel safe. Why is it so easy for people who wanna use guns in the commission of other crimes to get access to those guns? So look, in our office, of course we prosecute gun possession, we certainly prosecute as one of our top priority to gun violence. And in addition to that and as a higher priority than that, we’re also trying to find creative ways to legislation and impact litigation to get guns off the streets in the first place.
Sharone: That’s great. I do agree with all that. And I will say this, I think it builds up on the point. Listen, our people have been lied to. I come from the south side of Chicago, born in South Shore, raised in West [inaudible 00:42:58]. I’ve got folks in my family that are like, “What are you doing? Y’all need to lock these people up.” And the reason why our people say that is because they’ve always been lied to. They’ve been told the only path to safety is more police, more prosecutors, more prisons, more jails, harder, longer, faster. And the reality of the situation is we have to disavow our people of the reality that the courts and the police will save them, they won’t. They won’t.
Our city is currently having the discussion now, our superintendent is going on TV, our mayor is going on TV, and no doubt, they have a hard job because they’re really asked to do something that’s impossible. They’re asked to turn something around that we’re seeing across the entire country and they don’t have the tools to do it because they don’t control the reason why we see harm in our communities. Unless they can turn around economic inequality and overflow of guns in our communities, untreated trauma, decades and decades and decades and decades of racism, they’re not gonna be able to solve the problem. And where we also have a problem is for the little dollars that we do have, here in our region, 96% of those dollars go to reactions to harm.
Police showing up after somebody got shot, prosecutors putting somebody in prison after they decided somebody did it. And 4% of that funding goes to actually preventing, stopping conflicts before they happen. See, we live in a society where we think that we could lock somebody up and we think everything’s gonna be good. And we know, especially in Chicago, that our conflicts are based around groups and just locking one person up, even if that was the solution, won’t solve what you’re trying to solve for. So we’re a dog chasing its tail. So we gotta disavow our people, the idea that the courts and prisons is gonna save them, and that the police are gonna save them, and we have to define what safety means. And the DA talked about it, talked about how communities that are safest are the communities that are spending on other things, not on how to incarcerate their own.
Sakira: Thank you, DeAnna, for that important question because I mean, it goes to the heart of why we launched Visit for Justice and why I think many of us have begun to push a conversation around reimagining what it means to be safe, reimagining what safety really means to each of us and to our communities and our society. And I love the analogy that you gave to wealthier neighborhoods. I use this all the time in Washington, D.C. I talk about, you know, my grandmother’s neighborhood in Ward Katherine, the upper northwest, that I don’t even know where the police department is, right? Down the street where my parents live, I know we’re Fourth District, and I think that is true throughout cities across America.
And this brings us to our last and final question that I’m gonna ask each of you to answer. When we talk about the Vision for Justice platform, we’re centering reimagining. We’re centering rethinking and building something new and recognizing what we have as being systemically flawed from all levels and the need to really forge a new path. So I want each of you to do just that. I want you to reimagine what the pretrial system should look like, right? Reimagine how we address safety in America and what alternatives, not only to cash bail, but also alternatives to the current system that we should all be pushing for.
Because we could end money bail tomorrow and still have high rates of pretrial incarceration. We all know that. So I think we have to vision beyond ending money bail. What does it really mean to have pretrial justice in America? What does that image look like? What does it feel like? What does that system consist of? We do focus groups, we talk to everyday people, and the number one thing they ask us is, “Well, if you get rid of money bail, what do you replace it with?” So I’m going to ask each of you to give me your vision of what reimagining pretrial justice in America will look like. Katherine?
Katherine: Yeah. That’s such an important point you raise, Sakira, that we could get rid of money bail and not decrease pretrial detention and that would not be a victory at all. You’re so right that it’s important to envision a completely different system. I think, you know, certainly as a first step, a more equitable system would be one where money is not a factor at all and judges don’t have the option of imposing money bail or any condition of release that requires an arrestee to make any kind of monetary payment. But more importantly, a truly just system is one where the fundamental right to pretrial liberty is taken seriously.
As the Supreme Court has said, “In our society, liberty is the norm and pretrial detention should be the carefully limited exception.” So a just system would be one where most people are free pretrial and where judges carefully consider the individual circumstances and only impose non-financial conditions of release that are truly necessary to protect the government’s interests. Most importantly, I think an equitable system would provide resources to help arrestees and enable them to make their court appearances and to not commit new offenses while their case is pending, and there are lots of resources that already exist that can address these interests.
In terms of court appearance, you know, we have this idea that, you know, flight is a problem and it’s really not. It’s extremely rare that someone actually flees the jurisdiction to avoid prosecution. Instead, most people who miss court do so because they didn’t understand they were supposed to be there or they didn’t have a ride, they didn’t have childcare, or they simply forgot. These are problems with relatively simple solutions. We can redesign summons forms so that it’s easier for people to understand when they’re supposed to be in court. We can send text message reminders of court dates, which have shown to be really effective at getting people back to court. And we can provide rides or transportation vouchers for court. We can provide childcare at courthouses so people aren’t left in a position where they’re having to decide between leaving their kids alone or going to court.
DA Boudin: I hate to interrupt, Katherine, but I just wanna point out that in your example, leaving kids alone is something that often gets prosecuted. And so you’re using an example that quite literally, many working mothers and working fathers face where they have to choose between obeying a court order to show up in a courtroom that usually does not allow children to be present and potentially committing another crime by leaving their child alone if they don’t have access to childcare. I don’t wanna interrupt, go back with what you were saying, but that’s a really important thing for us to remember about the bind that all too often, our legal system puts people in.
Katherine: Yeah. Thank you for that point. There are all these things we can do to help people make it to court. There are also a lot of things we can do around this public safety issue. People have this unfortunate idea in their heads that money bail is somehow keeping us safe, which is just not true at all. Money bail does nothing to protect public safety because bail actually isn’t forfeited if someone commits a new offense while out on bail. So it doesn’t even create any incentive to keep the public safe. So there are lots of non-financial alternatives that can address public safety concerns and courts have really broad discretion to impose them, things like stay away orders from certain people or places, orders to surrender weapons, things that can address underlying issues such as counseling or treatment for addiction or anger management.
So those are some options. And also, you know, something that we’re really excited about is we have these pretrial services agencies that provide important services to people who are awaiting trial. Ideally, I think under a just system, these would be more of a voluntary community-led restorative type of program where a community organization is providing support to people pretrial and helping them address the needs that led to the situation they were in. Those are my ideas for a more just and equitable system that gets rid of money bail and also largely eliminates pretrial detention.
Sakira: Sharone, I wanna come to you. You’re reimagining, you know, using your creative juices flowing here. What does this look like for you?
Sharone: Yeah. I thought about this a little bit. The end goal is reducing pretrial detention, right? So famous artist, I love her, Kelis, “My milkshake brings all the boys to the yard,” right, any money bond brings a lot of people to the issue, right? We wanna end money bond, it’s very important. What we’re doing here is gonna save mainly black women, millions and millions and millions and millions of dollars. So it’s very important to end money bond. We also have to think about how we’re reducing pretrial incarceration. So I’ve got a list of things. I’ve done a little work while you asked the question. Listen, money should never be the determining factor whether somebody should be in or out. That’s number one, that’s any money bond. I think that’s the most important thing.
Release should be the norm and if you’re going to detain somebody, it is the exception, the carefully limited exception to the rule. We shouldn’t be basically locking people up based upon accusations and forcing them to plead guilty, right, and doing that in a very large, large, large amount. That’s how we got to the place that we are. I know people hate the idea, sometimes they hate the word, mass incarceration, but like we got to the mass incarceration place because of the front door, the pretrial detention. I think that we need to be thinking about evaluating people, accused people, holistically, right?
And we’re not just taking their charge or the allegation and their background as the reason why a person should be just incarcerated. We should be thinking about the whole, right? So like the DA talked about, whether that person is a mother, whether that person is the sole breadwinner or caretaker for people in their family should be evaluated. I only got three more, I’m sorry. You shouldn’t let public defenders talk. Listen, when we talk about conditions, right, conditions should not be about just making somebody do something because you want them to do it. If you’re going to put conditions on people, it should be specifically targeted to getting that person back to court, right, and assisting that person in getting back to court, right?
So things like curfews for no reason because you wanna control somebody or drug drugs, urinalysis, because you think drugs are wrong, all these things should not exist in the pretrial context. If you’re gonna put somebody, a condition on somebody, it should be just to get them to court. And I think we should be talking about the difference between somebody not showing up to court because it’s three buses to get to court or they don’t have to get money or they don’t have the money for it, or people who are willfully fleeing prosecution. And we’ve gotta be able to draw a line because the vast majority of people who are not making court dates are not leaving the country and getting to Cambodia because they got retail theft.
Most people aren’t doing that, right? When they don’t show up, it’s because it’s something small but our system can’t tell the difference in most jurisdictions. They can’t tell the difference between I don’t have bus money and I’m trying to get to Cambodia. That’s wild. We need to make a difference. And I think the final thing is we have to be transparent about our system, right? So there needs to be data. People need to be able to go out and see what’s happening and the people need to be able to move if there is a problem, right? So these are principles, the coalition to end money bond, we put together, bringing together folks from all across the space to kind of focus in on where we wanna go and that’s where we think we need to be at when it comes to pretrial.
Sakira: Thank you, Sharone. I think you made a really important point about the difference between not being able to get to court and trying to get to Cambodia because the irony is that the person who’s more likely to get out on money bond because they can afford a bond is the person who can afford to get to Cambodia.
Sharone: Yeah. Listen, no disrespect to Cambodia, I don’t know why Cambodia came to my head. I don’t have any clients…
DA Boudin: It’s a beautiful country. I’ve been there. I could just tell you.
Sharone: I’m weird, y’all. I apologize.
Sakira: We can pick any place. We can pick Paris. You know, it doesn’t matter. The point is people who are willfully fleeing the jurisdiction are more likely to be people who have the resources to do so…
Sakira: …and more likely to be the people who are able to be released because they have those resources to be released. So I think that’s a really, really important point in addition to everything else you noted. DA Boudin, I’m gonna come to you and then DeAnna to close us out and bring us home.
DA Boudin: A lot of what Katherine and Sharone said is important just to echo and just to recognize that we have the creativity, we have the ability to do far better, and we have models that work all over the country. The Supreme Court has told us again and again that we’re not allowed to punish people before they’ve been convicted of a crime in this country. That’s not what we do in a system where we respect the rule of law, that’s what they do in police states. So we need to be really clear about the massive amount of pretrial punishment that is happening in ways that violates our most basic constitutional principles.
That being said, let’s look at San Francisco as an example. About 75% of the people arrested and taken to our county jail suffer from drug addiction, mental illness, or both. And about a third of the people taken to our county jail don’t have anywhere to sleep at night. They’re unhoused. We cannot lock our way up out of those problems. We need to invest in making sure that every arrest is an opportunity for intervention and transforming lives away from crime, whether people are convicted of a crime or not, whether people are sentenced to jail or not. And we can do that far more effectively through pretrial supervision and services like mental health care, like supportive housing, like drug treatment, like job training, like actually getting people off the street and on their feet, and using this contact with the bureaucracy of the state, with the legal apparatus of the state as a mechanism to figure out what building safety in the long-term looks like.
We know that short periods of incarceration, two days, a week, a month, a year, do not provide housing for the homeless, do not provide treatment for the mentally ill, do not provide sobriety for the addicted. And so we need to start thinking about that contact, police, jail, prosecutors, public defenders as ways to get people connected with the kind of supervision and services that can transform their lives and build the kind of safe communities that we all deserve to live in.
Sakira: And DeAnna, what does this reimagined system look like for all of us?
DeAnna: I think it’s what everyone has said, right? So as advocates, as people directly impacted by this issue of people living in marginalized and oppressed communities, all we scream is build communities, invest in us, right? It’s not so much of defunding anything, it’s shifting how we do business, how each county and each area does business. And I always say, “If you wanna know a county or a locality’s priority, just look up your budget.” Law enforcement typically is the largest, social service is the bottom. If we start to shift that, it addresses those issues that DA Boudin just talked about, access to substance abuse, affordable housing. Some of our areas, working middle class can barely afford housing, let alone individuals who are struggling.
But I think Sharone says something very important that I wanna highlight, is looking at individuals you are gonna detain from a holistic perspective. As advocates, as people who have been subject to research, I always say, “We’ve been subjects of research,” but risk assessment tools cause more harm because the racial biases that are in them simply based on the static questions, right? Black communities are over-policed. So my interaction with law enforcement happens at a much younger age. I feel as a person who has worked in all levels of government, with a felony conviction, I’ve shattered glass ceilings. But if you do a risk assessment on me right now, there are some things I can’t change.
I can’t change how many times I’ve violated probation, right? I can’t change how many times I didn’t show back up at court because Katherine talked about daycare, but the offset of that, of leaving your child at home and being charged, is showing up with your child in court and your child disrupting the court and the threat of being arrested again while you’re sitting waiting on a court date, right? So what were my options? And some areas are switching saying, “Okay, we are gonna try to eliminate cash bail but we’re gonna utilize this risk assessment tool,” still doesn’t benefit impoverished individuals, right? So you’re just switching out cash bail for another tool that continues to oppress.
But I think we have to control this narrative, we have to keep the conversation such as this going, we have to have allies such as DA Boudin, Sharone, and Katherine, that’s actually willing to kick open the doors. And I don’t call them allies, I call them accomplices, right? Because they can get in spaces typically that as a formerly incarcerated person, I can’t get in. But if Chesa is in a room and he says, “I’m bringing her with me,” and we’re in his room and we start talking, it’s an accomplice to address this issue for people who typically wouldn’t hear from us to hear our voices, to hear our pain and to understand, from a personal perspective, the real impacts on real humans of what the system is causing by having this pretrial system.
But I wanna close with this. I think the biggest fear in society is, as Chesa said, people think pretrial, people on bond, or how Katherine said, “Even bond doesn’t guarantee a person is not gonna commit a crime so you’re not gonna forfeit it,” those who can leave have the resources to even get out. I think there’s this fear that if we really reduce cash bond and get rid of it and come up with alternative solutions, we then close jails. And that concept, when you start talking about closing jails, and I’ll give you an example, Rikers Island, most notorious, half of the buildings were temporary structures. At the height, Rikers incarcerated in-house 22,000 people at the height of the war on drugs.
We started this battle, the population had been hovering at 5,000 but law enforcement and corrections budget continue to go up. Population down but their budget went up. And I remember talking to advocates and other people in the communities about the harms of Rikers Island and what the other facilities and other options that provide services and resources, and I remember a little old lady from New York, around City Hall steps, she said, “No, just put the family members on a boat and take them over.” We’re talking about the bridge. And they weren’t coming up with real solutions to them because they feel, I think Sharone said it, we’ve been lied to, they feel that structure, that facility represents safety in some manner.
We don’t care about what happens inside that facility but to society, to New Yorkers, that building of Rikers Island represents safety and that if it’s there and people are there, they are more safer in the community and we have to change that myth. We have to change that myth that incarceration, correctional facilities, and all those things keep us safe because they simply do not. Once we start to move to eliminate cash bail, we actually get to move to decarcerate in the U.S. and reducing what we have known as mass incarceration, and not allow society to change from the current structure of mass incarceration and dress it up, change its clothes, and call it something else but it still produces the same outcome.
Sakira: You know, our current system in incarcerating so many people while they are legally innocent is racist and morally reprehensible and unconstitutional. And it’s past time that we completely overhaul our pretrial system and build one that is supportive of people, that maximizes their liberty, that reduces the number of people incarcerated, which means, you know, providing investments and supports in other ways. That means thinking about our system of incarceration very differently and criminalization very differently, moving away from a punishment paradigm to a paradigm of rehabilitation, of looking at people through a holistic lens of addressing societal problems at their core and not just addressing them by sort of dressing them up and trying to replaster them with something that looks like it’s solving the problem but it isn’t, in fact, solving the problem. Thank you, DeAnna, Katherine, Chesa, and Sharone. We are so appreciative of your time and your leadership in this space. I would like to hand it back to Vanessa to take us out.
Vanessa: Thank you for listening to “Pod for the Cause,” the official podcast of The Leadership Conference on Civil and Human Rights and The Leadership Conference Education Fund. And thank you so much to Sakira Cook for co-hosting. For more information, please visit civilrights.org. And to connect with us, hit us up on Instagram and Twitter @podforthecause. And you can text us now, text Civil Rights, that’s two words, Civil Rights to 40649, to keep up with our latest updates. Be sure to subscribe to our show on your favorite podcast app and leave a five-star review. Thanks for listening to “Pod for the Cause.”