Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective, and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Griner, and this is Proof Over Precedent.
This week we're bringing you a student voice.
[00:00:38] Speaker B: Hi, this is Julia Saltzman and I am a 2L at Harvard Law School. And I'm here with Strong.
[00:00:46] Speaker C: Hi Everybody. I'm Strong Ma. I'm also a 2L at Harvard Law School.
[00:00:51] Speaker B: So excited to sit down with you today and talk a little bit more about your blog post which you wrote on California's attempted and fail to end cash bail back a couple years ago.
So, yeah, if you could tell our audience a little bit more about yourself and why this topic matters to you, that'd be great.
[00:01:18] Speaker C: Thank you so much, Julia. I really appreciate getting to sit down and talk about this with you.
I am a California native. I grew up in the Sacramento area. So I've really always been interested in in California politics and the California direct democracy system in specific, even relating to sort of criminal justice in a California context. My dad actually works in the state prison system in California. And so those two interests melded together. And beyond that as well, I'm also interested broadly in the effect of machines, artificial intelligence, these sorts of more technological aspects on legal reforms.
I think that's part of the reason why I'm so excited to be part of this justice lab. Access to Justice Lab is because we get to talk about that a lot.
And so just to provide a really quick background on what we're going to be talking about in this podcast, we're going to be first moving on for a background on cash bail generally and what the system means for people going through it. Then to the California referendum and what it actually did, did, and would have impacted. And finally the rhetoric and the ways we sort of start thinking about bail reform and ending cash bail and how it might give us some lessons in the future about, like how can people who want to end cash bail learn from its failure in the California electoral process.
[00:02:39] Speaker B: Yeah, it's strong. So I think it would be helpful to start with how the cash bill system works.
[00:02:47] Speaker C: Yeah, for sure. You know, the cash bail system is essentially like a deposit that you put into the courts. The fundamental premise of cash bail is that it's Supposed to encourage people to appear in court for their court dates. When someone gets arrested, you can either keep them in jail the entire time before their court date, or you can release them and hope they come back and show up. And so we use cash. The justification for cash bail is that a defendant will deposit a certain amount of cash into court, and if they show up, they get that cash back, but if they don't, they lose it. And so it's a monetary economic incentive to reappear before the courts.
[00:03:29] Speaker B: So how are judges setting this amount? And what does. What are the ranges? How much are people paying for this?
[00:03:36] Speaker C: Yeah, I think that's a really important aspect of cash bail.
These bail schedules are standardized amounts per sort of offense, where if a defendant is booked on a certain offense, they'll actually be just given a default amount of bail. And that is really problematic for the system because these bail amounts get so inflated and so high, Judicial discretion can actually either increase that bail amount or decrease that bail amount. And most jurisdictions, there's a lot of discretion for judges to do something and the ability to pay sort of.
Can the judge change the bail amount depending on each defendant's financial circumstances? That's not always considered. In fact, there's only a few jurisdictions out there that require a judge to consider a defendant's ability to pay. A lot of jurisdictions don't. And so you end up with these really inflated bail amounts that no regular person could ever afford.
You know, the best available data we have for sort of statistics around bail amounts was back in 2009, and even then, it was $10,000 for a felony.
And in the California context, it was even worse. In 2009, the median for California was $50,000, which is around $75,000, adjusted for inflation today. And that's, you know, no regular person can ever post the full amount of that bail.
[00:05:05] Speaker B: That's crazy thinking about some of these figures.
So what happens when individuals can't pay?
[00:05:14] Speaker C: Yeah, so you generally have two options if you can't pay the full amount, you know, say that $75,000. So you either just stay in jail until your court date, or there's actually a whole cottage industry of people who will post the full amount for you as long as you pay them a certain fee. So that's called the bail bonds industry. And the way it works is they generally ask you to pay 10% of your bail amount. So if you have a $75,000 bail amount, they will ask you to pay them $7,500, and then they will post the rest to the court.
The difference is that $7,500 you pay to the bail bonds company that's non refundable. You'll never get it back. It's basically a fee.
And this bail bond type of system is actually the most common way people get out of jail. No person like usually is able to post the full amount in their bail. They almost always pay a bail bond company to do it. And you can imagine the effects of that, right? It's people actively losing money to the system because they're never getting that fee based back. It's not like a deposit anymore. They're just getting a chunk of money taken away from them. And most, you know, often the case, the people who are arrested the most are those in more economically and financially disadvantaged situations. So there are disparate effects to it.
[00:06:36] Speaker B: So you're already kind of getting into this with the disparate effects for poor people that cash bail imposes on our society.
But, but what are advocates saying? Why do people want to end bail?
[00:06:53] Speaker C: Yeah, for sure. I think the really central aspect of it is just the wealth disparity of it all. Just having a system in our criminal justice apparatus that is so transparently based on an ability to pay at the amount of money you have is just fundamentally feels wrong.
Speaks to a sense of justice that isn't there. And so people call it a two tier justice system between the wealthy and the poor.
You also have a lot of people just stuck in jail. It's not, you know, if you can't pay it and you can't even pay the Bail bondsman the 10% of the bail bond, then you're just, you know, you are going to be forced to stay in jail until your court date. And there is actually a lot of research out there done about the harmful effects of staying in pre trial incarceration before you've ever been adjudged, you know, innocent or guilty. And actually I think there is another blog post from a member of this lab who actually writes about some of these costs which I think you should take a look at. It's very, very interesting and very good.
But regardless of that, there is just one, the wealth disparity of it all. There is aspects of disparate outcomes based on race, based on other sort of, you know, aspects of people's identities and finally the over incarceration of people. I think sort of that's the three main pillars of why people criticize cash bail and especially because of the wealth disparity aspect of it. The ending cash Bail effort had a lot of bipartisan support, at least pre COVID 19.
[00:08:20] Speaker B: So strong.
Let's get back to California. What happened in California with their efforts to end cash bail?
[00:08:30] Speaker C: For sure.
[00:08:30] Speaker A: Yeah.
[00:08:31] Speaker C: So I was talking a little bit about how there was this pre pandemic emerging consensus that we just want to end cash bail in some way. So California, in part, perhaps writing that consensus, passed a law called SB 10. The state legislature passed it, the governor signed it in 2018.
And so that law ended cash bail statewide and replaced it with a system of what they called pre trial risk assessment.
[00:08:59] Speaker B: Okay.
[00:09:01] Speaker C: Yeah. And so just to clarify what pretrial risk assessment is, it's a rather vague and general term. Pretrial risk assessment is essentially a way to determine if a defendant is going to be a risk if you release them before their court date. And that risk can be kind of divided up into are they a risk to the public, as in, will they reoffend before their court date, or are they just at risk of not reappearing, as in they'll miss their court date.
And so pretrial risk assessment tries to use a variety of tools to predict the level of risk each defendant has. And so these tools, there's quite a few of them out there. For example, there's something called the public safety assessment. There's another one called Compass, and they all try to use a variety of factors, usually based on the defendant's personal characteristics, to try to determine how risky they are of reoffending or of not appearing. And so, for example, in a public safety assessment, those factors can be age, prior criminal convictions, etc. Etc. And that's sort of like a yes or no kind of thing.
Some other risk assessment tools are more untransparent. We just don't quite know what weights they give.
Compass itself says it's the trade secret.
But they might take into things, take things like education, involvement, of course, drugs, et cetera, et cetera, into account.
[00:10:24] Speaker B: So with California, how were they planning to use pre trial risk assessments? Was it one of these sort of transparent predictors or something less transparent?
[00:10:37] Speaker C: Yeah, that's the thing we'll never actually really know since it failed, because SB10, the law never mandated a specific risk assessment tool. They sort of kicked that can down the road and said, we're just going to have a commission decide for themselves which tool should be the best and how to validate it. Right.
What the law did do was basically tell courts how they would be using these risk assessment tools. Whichever one they chose, they basically told them so whatever score you get from these tools, you're going to divide them up into three categories, low risk, medium risk, and high risk.
And the way the law is written, defendants pre arraignment. Arraignment is basically the first hearing of a court case where the charges are read against you and the judge decides further on. Like if you're incarcerated before the real trial or any further proceedings before arraignment, a low risk defendant would be automatically released and a high risk defendant would be automatically detained. And the court would have discretion over the medium risk defendants if they should be released or detained.
The interesting thing about it is that at arraignment, when the court actually hears the charges and decides by itself the further actions about pretrial incarceration, the judge still maintained full discretion over release or detainment at that stage. So you have this sort of two step process where pre enrollment, the scores actually determine some of the release decisions. And then at arraignment there is still judicial discretion. And that's important because of the rhetoric that seemed to emerge around this whole law and the process that's set up for it.
[00:12:20] Speaker B: So what exactly happened with SB 10, the California law, and why did it fail?
[00:12:27] Speaker C: Yeah, so SB10 was not without controversy. After it got signed by the governor, it was met with a lot of concern over the risk assessment tools and, you know, some disappointment from civil rights, civil liberties advocates that it didn't go further to solve sort of over incarceration, which California has had a long and dark history with.
And the bail bond companies obviously really didn't like this law because it basically eviscerated their entire industry in California. And so what the bail bond companies did, being a very, very profitable industry, they spend a lot of money on signature gathering services and managed to get SB10 put on the ballot as a referendum.
[00:13:12] Speaker B: So, okay, so the bail bond company paid, basically, it feels like, to put the referendum on the ballot.
Yeah, yeah, okay.
[00:13:24] Speaker C: Yeah, It's a little crazy, but it's one a reflection of how crazy California's direct democracy system has been. One of them being the referendum system, which is basically if you get enough signatures, you can put up a law that the state has passed up for a vote and basically say, we actually don't like this law, we're going to turn it down.
And so, you know, the way California has started developing this direct democracy system, it has been, you know, referred to by a lot of researchers as a little bit captured by, by industry, by moneyed interests, because it's so easy to pay A company to gather signatures. And you know, it's. The threshold is low enough that you know if you have enough money, you can get something onto the ballot. And it seemed like that's what the bail bond industry did, is they just spent a lot of money, got enough signatures and got it onto the ballot.
[00:14:20] Speaker B: And how did the vote actually go?
[00:14:23] Speaker C: Yeah, and so that's sort of the, you know, skipping ahead to like the end of our efforts to end cash bail, at least through the legislative process in California, the voters decided to vote against SB10 or the name on the ballot, which was Prop 25.
So people actually voted no on Prop 25, basically saying we don't want to end cash bail in the way that the state passed through this law.
And it was not even particularly a close vote. I believe it was 56 voting against ending cash bail and 43% voting yes.
[00:15:01] Speaker B: Yeah, it's definitely surprising in a state like California that this didn't go through. So what was happening here, do you think?
[00:15:11] Speaker C: Yeah, for sure.
I was definitely surprised, especially one being California. And it's generally more progressive leanings. But also even that election year, California had done some very pro criminal justice reform propositions.
The voters had voted both to give parolees the right to vote and they had also voted against increasing certain criminal penalties in the law. And so we have that on one side. And then voters voting to not end cash bail, which is why I think it's an interesting moment.
And I think sort of what really stuck out to me in the campaigning and sort of the post mortem analysis is that the rhetoric became about these pre trial risk assessments systems and tools.
More specifically, they became about like this almost, you know, buzzword of algorithms and the threat of like computers and technology taking over the legal process. You know, one newspaper that I sort of based my title on called it a, or didn't call it, but like said, is it a robopocalypse? Is how.
[00:16:31] Speaker B: Robopocalypse.
[00:16:32] Speaker C: Yes.
And you know, that, that, you know, gives you to sort of the feeling that opponents of ending cash bail in California were trying to generate. Right. It's invoking this idea that computers would be the one deciding if you're going to be in jail or not. It's like the Minority Report, right, Where like they're calculating somehow predicting things that you've done before you've ever done them.
Some of the campaign sort of statements even, you know, imagine a spouse, son, daughter or close friend stuck in jail at the mercy of computers in the bureaucracy.
Prop 25 will force Californians to rely on computer algorithms managed by government bureaucrats to decide who can and can't get off jail. So, like, they're trying to invoke this unholy combination of computers and government bureaucrats, which I'm sure was quite convincing.
[00:17:19] Speaker B: No one's favorite things.
[00:17:20] Speaker C: Yes, exactly.
But yeah. So this, this idea of computers, you know, it's like a generic fear of like computers taking over our lives.
And actually one probably coincidental but still funny observation, if you look at the electoral maps, is that pretty much the only electoral districts that voted for Prop 25 were all clustered around the Silicon Valley.
[00:17:42] Speaker B: Yeah.
[00:17:43] Speaker C: In addition to this general fear of computers was also actually a, I think, a very fair criticism about how these algorithms, how these tools might themselves be inherently biased. There was research being done at the time time about how a lot of these tools might potentially still maintain or enhance some of the disparate outcomes against certain minorities.
And so that's why there was actually a contingent of civil rights civil liberties organizations who stood in opposition to ending cash bail this way. So you would have this strange circumstance where we have the aclu, the NAACP or certain chapters of them standing in solidarity with the bail bonds industry, at least on this very specific proposition. Like strange bedfellows almost.
But it is this idea that ending cash bail would, in this way would have still discriminatory and disparate impacts.
[00:18:43] Speaker B: So going forward now that this battle was several years before, before where we are now, but many advocates rightfully still want to end cash bail, what can we learn from California and some of its critics that I think rightfully have concerns about how a computer might replicate pre existing biases? So I guess what's next? What do you think?
[00:19:15] Speaker C: Yeah, I think there's definitely, you know, a very fair concern about algorithms in a black box determining our fates in a way that might, you know, fundamentally be biased? I think there's a couple responses to that even in the California context. One is that SB10, Prop 25, they didn't, you know, actually mandate a specific algorithm or pretrial risk assessment tool. Right. Not every one of these tools is a black box and some of them can and should be audited. And there should probably be further research done on the disparate impacts or potential disparate impacts that these tools have. I think it's also important to mention that Prop 25, SB10, they didn't mandate that these tools will be the sole decision maker in pretrial detainment. Judges still maintain a lot of discretion at arraignment to make these decisions.
I think even more generally, one of the big takeaways is the importance of narrative. Right. And when you want to end Cash Bill in this way, you have to be sort of very concerned about the ways in which they're narrative focused right there. Even if there's consensus about Cash bill being bad, you may actually fall into the trap of the narrative focusing around, well, what's going to be replacing it. Right.
And I think that's another thing to take away is people should be very, very cognizant about how they're characterizing the tools and the various ways we're trying to reform criminal justice. Because there does seem to be a collective consciousness over computers in it that for better or for worse, fair or not, is politically impactful,
[00:20:58] Speaker B: strong. This has been a very insightful conversation.
Do you have any final takeaways?
[00:21:06] Speaker C: Yeah, I think in general, I think the California example really shows that the reform effort of ending cash bail doesn't necessarily have to be so tied to having an algorithm do all the decision making. Ending cash bail can, and sort of any criminal justice provision can maybe focus on one critique. Right. And you can end cash bail by just leaving it all up to a judge to decide if a defendant stays in jail or not without having money be a part of the equation. And that can start addressing the real wealth disparities that we have in the system, addressing other disparities, such as disparate outcomes, disparate impacts, and these concerns over incarceration, they can come through other systemic reforms, they can come through additions to that, but each one of them comes with their own political complexity, political narrative. And so the more you try to add on to a particular piece of reform, the more you take with it a lot of the concerns, and you might sort of burden yourself in a way that California did with this pretrial risk assessment conundrum, that robopocalypse conundrum, as you will.
And so I think in general, there is still hope for it, still hope for ending Cash Bill. Illinois provides a great example where they allowed risk assessments into the process, but didn't focus on it at all, really. They kept it in the background and really still had this aspect of digital discretion. And it seemed like it's, at least from current research, pretty successful. And so I think that's the main thing I want to take away, is that just be careful about the ways in which you are building onto the system or adding onto a reform that might burden it or impact in some way in the public sphere. And also be careful about notions of robopocalypses and computers.
[00:23:04] Speaker B: Well, thanks Zhuang. And I hope that more states will find things whatever political tools necessary to end cash. Boo.
[00:23:16] Speaker C: Yeah, thank you so much.
[00:23:18] Speaker A: Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
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Here's a sneak preview of what we'll bring you next week.
[00:23:44] Speaker C: Essentially, the organ transplant list has always been a algorithmically decided list. Usually the ranking on the list is what controls like the order of how the organ is offered to people. But the New York Times article found that there's been an increase in the past few years of human made decisions that depart from the list. And these decisions were justified by saying that they needed to get organs to people faster. And sort of the reactions like New York Times interviewed folks for the article and the reactions were sort of across the board. This human decision making is actually incredibly unfair that we have this list, that departing from it based off human decisions felt very, very unfair, especially for those who are skipped.
