Approximately half a million people are currently in jail awaiting trial across the United States, the vast majority because they are unable to pay bail. A 2018 study of Philadelphia and Miami-Dade County found that people being held on bail earned roughly $4,500 per year on average. Many of them will plead guilty just to get out of jail. On this week’s episode, we are joined by Appeal reporter Joshua Vaughn to discuss how bail punishes people for the crime of being poor.
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Adam Johnson: Hi, welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on The Appeal magazine’s main Twitter and Facebook page and you can always rate and subscribe to us on Apple podcasts.
Roughly 500,000 people sit in jail pretrial across the United States, the vast majority because they are unable to pay bail. A 2018 study of defendants in Philadelphia and Miami Dade County by researchers at Princeton, Stanford and Harvard found that those who are held because they have an inability to pay bail earn less than $4,500 a year. Cash bail is above all a way of punishing the poor who often plead guilty to crimes just to get out of jail. On today’s episode, we are joined by Appeal writer Joshua Vaughn to discuss how bail locks up people for the crime of not having access to large sums of cash.
Joshua Vaughn: All of the things that we know that keep people connected to the community, having a job, having a home, are things that insulate people from going on to commit new offenses, or to commit criminal offenses just period. When you lock someone up, and especially when you lock someone up who doesn’t have the means morally, the only reason that they’re there is because they don’t have enough money to post, which arguably that is never supposed to happen in this country period. You’re making them worse off than they were before and you are destabilizing them and you are making them more likely to commit new offenses, which is counterintuitive and is against the public safety that we argue that we want from this system.
Adam: Thank you so much for coming on Josh.
Joshua Vaughn: Thank you.
Adam: So you wrote an article in The Appeal called “Pleading Guilty to Get Out of Jail,” which focuses on the criminalization of poverty in Franklin County, Pennsylvania, which is approximately where you are located. You started off with a somewhat powerful anecdote, a story. Can you tell us this story and what it tells us about cash bail in Pennsylvania, but also just cash bail more generally?
Joshua Vaughn: Sure. So there’s the story focused around a woman named Tiana Lescalleet. She was camping in a wooded area in Washington Township, Pennsylvania, which is right across the border from Maryland. She was with another man, there was drug paraphernalia, the cops got called, they show up, they find the drug paraphernalia, they’re actually looking for the guy because he has a, uh, probation or parole violation that they’re, so they’re trying to find him to take him in on that. When they find him, they have him, you know, get his clothes on. As he’s putting his pants on, they find jewelry inside of his pants. And it turns out that jewelry came from Tiana’s mother’s house that she had reported being burglarized, uh, a few days before. And this happened in 2016. So they find this jewelry, they find drug paraphernalia, nothing in the affidavit signed by the police actually says that Tiana helped steal the stuff that it was her drug paraphernalia, that she was the one who actually had the jewelry, but she winds up getting charged because she’s there. She gets charged with possession of drug paraphernalia and receiving stolen property. So being in possession of property that’s been stolen and she gets taken in front of a magisterial district judge and in Pennsylvania those are magistrates. They’re the lower level judges who for the most part, that’s where most cases start in Pennsylvania. The police file an affidavit, they go to the magistrate to get that signed off on so that they can arrest the person and they bring them in front of the magistrate to have bail set at what’s called a preliminary arraignment. So the defendant gets told what they’re charged with and the judge decides bail. And in Pennsylvania it is almost carte blanche how authority that magistrates have. They can set bail pretty much however they want to. And there is a set of standards that they’re supposed to look at. Ability to pay is supposed to be one of them. There are standards of what things they can look at, like the type of charge, uh, if the person’s employed, those sorts of things in determining it. But there’s no, there’s no real rubric to decide, you know, if the person’s been employed full time for this long they make this much amount of money this is what we set bail. They can take those into consideration and weigh them however they want to. And in Tiana’s case, she had no prior criminal convictions, her prior record score, when you look whenever she finally got sentenced on this, she had a zero, which means there was nothing in her criminal history as far as convictions are concerned, misdemeanor, felony, nothing. Judge decides to set bail at $75,000. And again, it’s one of those where why $75,000? Maybe because she was from Maryland and she’s in Pennsylvania. Maybe because there’s drugs involved. We really don’t know. It’s just the choice that the judge made was $75,000. She can’t pay $75,000. So she winds up going to Franklin County Jail. Uh, she’s there for, it’s roughly a month as the case works its way through the process. And in Pennsylvania, what happens is you get brought in for your preliminary arraignment. That’s whenever a bail gets set. There’s generally, there’s a few places that there are, but generally there is no defense attorney there. It’s just you, the police officer and the judge. And most counties in Pennsylvania police are allowed to file criminal charges without even speaking to the district attorney. So police file the charges, bring them in, get the preliminary arraignment and then what happens, what’s supposed to be within 10 days of when the person has been arrested, if they are incarcerated during that time, they’re supposed to then within 10 days have a preliminary hearing, which is your kind of very basic evidentiary hearing. They’re just trying to decide was a crime committed and is it likely that the person who has been arrested is the person that committed the crime.
Adam: Okay, that sounds very bad. So we’ve talked about bail reform in the show a few times. It’s actually been a while. But the general sort of gist of it is that the criteria for those who are remanded in prison has nothing to do with guilt or innocence or even quote unquote “public safety.” It has everything to do with who is poor. You quote Alexandra Natapoff, who is a professor at the University of California who says, quote, “We’ve created a machinery that churns out low-level convictions based not on individual guilt or culpability, but on an individual’s ability to pay.” What did they mean by that? You’ve sort of given an overview of this specific county, but the numbers you proffer are quite staggering in terms of who can afford to pay and who can’t afford to pay. You mentioned there’s one study done by Princeton, Stanford and Harvard — which is quite a lineup, kind of the Ocean’s 11 of studies — that looked at Philadelphia and Miami Dade that found that the average person who was unable to pay bail made roughly $4,500 a year. And Miami Beach specifically I know from a separate report I read, 81 percent of people who are prosecuted were homeless. It seems like we’re just taking the bottom rung of the socioeconomic ladder and we’re throwing it away. We’re getting rid of it. Is that a correct generalization of what really motivates this?
Joshua Vaughn: Yeah, I mean I think that that’s fair, but I think a part of that is that tends to be who we police the most. Those are the people who tend to get caught for crimes, those social order offenses. This story for the most part looked at lower level misdemeanor offenses. So a lot of social order things, disorderly conduct, drug possession, possession of drug paraphernalia, not a lot of the felony level offenses. And a lot of the people that we’re catching for that and a lot of people that we’re prosecuting for those sorts of offenses are lower socioeconomic to begin with. So those are the people coming into the system and then you take a system of cash bail that says, well-
Adam: Right, so it’s a double filter.
Joshua Vaughn: Yeah, yeah. So if you want to get out of jail, you have to pay a certain amount of money. Well, if you already have no money, you don’t have the money to get yourself out of jail, then the pressures come to either plead guilty or try to fight your case and sit until you know whenever that actually gets resolved, which can be years in some cases.
Adam: So the question we ask when we focus on specific states is that, do you have a sense of where Pennsylvania falls in relation to other states on cash bail? I know there’s been reform efforts on a local level. I know in Philadelphia for example, but broadly speaking, how punitive and anti-poor is Pennsylvania relatively speaking?
Joshua Vaughn: I mean, I could not say particularly from state to state, but there is a big fluctuation in Pennsylvania from county to county and even from judge to judge. So when I was reporting for the local newspaper that I worked for before this, we looked at, I did a report on, you know, how much does cash bail change from one judge to another just within our county and found that medium bail is just within a small rural county fluctuated from anywhere from $7,500 to up over to $40,000 just depending on the judge. There really did not seem to be any correlation to the types of cases because it is a small county. They’re all seeing largely the same types of cases over a given year. It’s a lot of fluctuation and it’s a lot of just discretion to each individual person in each individual county.
Adam: Right. Okay, so it’s difficult extrapolate. Right. Are there any efforts to, I know that, again, there’s the sort of high profile Chicago, New York, Baltimore, but one of the things that we struggle with on this show is how to sort of talk about the places that are not big cities, where there’s journalists and even some established sort of left-wing or progressive push back against this. What does the pushback look like in these counties in the middle of rural Pennsylvania? To what extent are there efforts to curb this or is this exclusively the domain of bigger, more kind of quote unquote “liberal” cities?
Joshua Vaughn: For the most part if you have pushback on these issues, it’s kind of a conservative pushback that can come in two flavors. One is just the financial impact that this has and in Franklin County that’s one of the things that we looked at. They’re over capacity so they’re sending people out to other jails and it’s costing the county at this point over $170,000 just through April of this year to send something like 20 people a day to other counties because they are so over capacity. So there is a financial conservatism to it that if we can do this better that it will not cost so much. And then there’s a public safety component to it because the way cash bail is set up, there is an argument for public safety and that is something that gets argued a lot as to why bail is set so high. But if you have the money you can get out and people are able to pay the money and people then can also go on to commit new offenses as long as they have the money to be able to get out. So there isn’t really a public safety component other than ‘I’m going to set the bail so high that you can’t get out of jail.’
Adam: Right. I mean the public safety component where you’re sort of saying ‘let’s eliminate any risk at all’ is something you’re seeing more and more as police forces, police unions and their confederates push back against bail reform where they’ll say, you know, they’ll try to find a one off cases from three or four years ago where someone was out on cash bail or out on a reconnaissance bond. And then they say, ‘oh, well look at that.’ But I mean, look, you could, if you locked up, you know, 100 percent of the population, there wouldn’t be any crime.
Joshua Vaughn: (Laughs.)
Adam: Right. So you have to sort of balance, even if you accept the premise that bail reform leads to more crime, which there’s actually no evidence that it does, one Chicago study says that 98 and a half percent of people who are out on bonds do not commit re-offences, I should say violent re-offences. There’s always sort of petty arrests and stuff, but um, I dunno, it seems like as long as that’s so easily demagogued the pushback against bail reform gets, PR wise, is very difficult.
Joshua Vaughn: That argument assumes that those things are not happening with the current system. I can tell you, and again, it winds up being anecdotal because most people who are released period don’t wind up going to commit a violent offense while they’re out. There are obviously examples of that, but when you look at the whole, whether you’re out on cash bail, whether you’re out on your own recognisance or whatever other form of bail you’re released on, most people do not go on to commit a new violent offense. And you can find anecdotes if you are opposed to bail reform to say, ‘well this person was released and they went on to commit some horrific crime.’ You can find the same anecdotes if you are for bail reform to say, ‘hey look, this person was able to post $75,000 bail and went on to kill somebody.’ Those stories happen.
Adam: Right. So the cash is not the criteria. Of course they would maybe argue lock up everyone and have no one out on bail.
Joshua Vaughn: There is that. And actually what’s interesting about Pennsylvania, Pennsylvania reformed its bail bond law in 2015 and actually removed language that bail bonds can be revoked for new criminal offenses. So it’s not even while you’re out that you can revoke a bail bond because somebody went on to commit a new offense. So there isn’t even that incentive any more in Pennsylvania.
Adam: So there’s one factor that’s also completely overlooked. One University of Pennsylvania Law School report cited multiple studies that showed that those who have pretrial detention are actually more likely to lead or commit crimes than those who don’t. There is speculation as to why this is, they think pure influence of being in prison, but more importantly the result of losing one’s education opportunities and jobs. People frequently lose jobs when they’re incarcerated. Of course. Can we talk about, really kind of establish the moral stakes about what we’re talking about, that there’s an opportunity cost, not just the violence of locking people in cages, but there’s a real kind of second order effect on everything else in their lives. Can we talk about that and kind of establish the moral stakes there?
Joshua Vaughn: Sure. So, and we kind of touched on it a little bit before. Most of the people or a high percentage of the people that we are incarcerating, especially the people that we are incarcerating pretrial because they are unable to pay bail or just incarcerated pretrial don’t have a lot of means to begin with. So you’re taking people without means, without a ton of opportunity and you’re locking them up. And that means even if it’s a couple of days, say three days, you don’t show up to work for three days, you’re losing your job. You lose your job, you likely, if you’re living paycheck to paycheck, you’re probably going to lose your house. That’s all the things that we know that keep people connected to the community, having a job, having a home, are things that insulate people from going on to commit new offenses or to commit criminal offenses just period. When you lock someone up, and especially when you lock someone up who doesn’t have the means morally, the only reason that they are there is because they don’t have enough money to post, which arguably that is never supposed to happen in this country period. You’re making them worse off than they were before and you are destabilizing them and you are making them more likely to commit new offenses, which is counterintuitive and is against the public safety that we argued that we want from this system.
Adam: Right. So can you talk about what groups are out there in Pennsylvania that are trying to provide some kind of counterbalance to this system?
Joshua Vaughn: The Council of State Governments’ criminal justice group just helped with a Justice Reinvestment Act, second round Justice Reinvestment a couple of years ago that’s now starting to work its way through the state legislature to actually become law and one of the things that they recommended was putting together at least a panel to start looking at this issue and looking at the issue broadly.
Adam: Oh, we’re getting a panel. Okay.
Joshua Vaughn: We’re getting a panel.
Adam: We’re getting a study to study the study. I’m excited about that.
Joshua Vaughn: (Laughs.) Central Pennsylvania, probably not a ton of groups that I know of offhand, but again, part of that is just how separate each county is from the other. Each county has its own criminal justice system. Each county operates kind of independent of itself. I think you’re starting to see momentum and you have groups like the, I don’t know if they, they’re working specifically on bail reform, but you have conservative groups like the Commonwealth Foundation that is starting to push more criminal justice reform and it seems like the momentum is moving towards bail is one of those issues that needs to be addressed. It needs to be addressed more broadly than just in Philadelphia and Alleghany County where Pittsburgh is. So hopefully that starts to trickle into central Pennsylvania and a lot of the more rural areas of the state.
Adam: Joshua Vaughn, thank you so much for, uh, for coming on. This was great.
Joshua Vaughn: Thank you.
Adam: Thank you to our guest Joshua Vaughn. This has been The Appeal podcast. Remember, you can always follow us at The Appeal magazine’s main Facebook and Twitter pages and you can rate and subscribe to us on Apple podcasts. This show is produced by Florence Barrau-Adams. Production assistant Trendel Lightburn. Executive producer is Matt Ferner. I’m your host Adam Johnson. We’ll see you next week.