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Episode 274 – Is Bail Reform the Answer? with Jeff Clayton
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When most of us think about bail, we focus on the financial burden it presents to the accused. This week’s guest is Jeffrey J. Clayton, Executive Director of the American Bail Coalition. He talks to Steve about the complicated anti-democratic trap that is our criminal justice system.
Jeff explains that across the US there are plans in place to eliminate bail. (One would think that’s good news. One would be wrong.) In reality, these plans result in greater violations of civil liberties. Bail is being replaced by pre-trial incarceration and risk assessment tools using computer algorithms (AKA profiling?)
In his dissent in United States v. Salerno, Justice Thurgood Marshall warned that we are quickly moving to a criminal justice system where “a person innocent of any crime may be jailed indefinitely.” Marshall called the bail system a shortcut to conviction.
Steve and Jeff discuss the most obvious ways to address crime – by providing jobs, housing, and education or training. Some caught up in the criminal justice system need recovery treatment. In the US, those healthcare services have become punitive. Jeff refers to them as the dragnet of the state.
Steve speaks of addressing the material conditions that contribute to criminal behavior. He brings up the concept of a federal job guarantee and talks about resource allocation and macroeconomic justice.
Jeffrey J. Clayton serves as the Executive Director of the American Bail Coalition (ABC). He holds a B.B.A. from Baylor University, an M.S. in Public Policy from the University of Rochester, N.Y., and a J.D. from the Sturm College of Law, University of Denver.
Macro N Cheese – Episode 274
Is Bail Reform the Answer? with Jeff Clayton
April 27, 2024
[00:00:00] Geoff Ginter [Intro/Music]: Here’s another episode of Macro N Cheese with your host, Steve Grumbine.
[00:00:45] Steven Grumbine: All right, this is Steve with Macro N Cheese. I’ve been talking some weird stuff lately. I have talked about Julian Assange, and prior to that we dove into class and modern monetary theory. So we’re going all over the place. They all tie together with a common theme, and that’s the impact that macroeconomics has on our lives and on the very freedom that we think- or don’t think- we have. Today is going to be no exception to that.
We’re going to go down another path, that maybe seems unconnected, but I assure you by the end of this conversation you will see some connections, and hopefully we’ll have a different point of view. My guest today is Jeffrey J. Clayton, he is the executive director of the American Bail Coalition, and we’re going to talk today about bail reform, and crime and punishment in America.
And everyone knows my story. We’re talking about a transformation, from a conservative- that just believed what was being told to him, to a libertarian- who didn’t believe anything that was told to him, to a ‘drive-by’ through the Democratic Party, and then on to something independent. Let’s just call me an MMT informed leftist. The conversation today is going to be discussing bail reform and surrounding issues. Let me bring on my guest, Jeff Clayton, welcome to the show, sir.
[00:02:11] Jeff Clayton: Thanks for having me on.
[00:02:13] Grumbine: Absolutely. I didn’t know what to expect. Your PR person came to me and said, ‘we’d like to see if you’d like to talk about bail reform, criminal reform, jail reform, and prison reform.’
Yeah, of course I would. And I didn’t understand the angle you came from, and so I did a little bit of digging. And this is going to be an interesting conversation, to say the least. But I think it’s a conversation that needs to be had, and not in an echo chamber. Because this is about trying to better understand the very real concerns of the public, who deal with the outcomes of crime, and the very real issues that generate crime through what I believe are austerity measures. And a state that requires a permanent underclass, to maintain an upper class. And I think it’ll make for a great conversation. So, what can you tell me about what you do at the American Bail Coalition?
[00:03:13] Clayton: Absolutely. So, about 10 years ago, I was approached by the coalition in a time period of bail reform, that I’m sure you’re well familiar with. Really, the idea that we’re going to end money bail and go to something else. And obviously that would concern insurance companies who underwrite bail bondsmen throughout the country, to say, ‘should we go to that model or not?’
And I took it on to not go to that model, to preserve- at least in some respect- the idea that there would be a right to bail by sufficient sureties. And so for the last 10 years I’ve studied the issue- obviously I was well familiar with it before having worked 10 years as an attorney, working for the Colorado State Probation Department for five years, and just having been familiar with the issue, having studied it, took it on. And the idea was, we’re going to protect this pathway out of jail, this right to bail in the United States. And I’ve traveled to 35 state capitol cities, testified in front of various committees at legislatures. I’ve talked to federal legislators about it. I’ve talked to judges, chief justices, about bail and all the iterations of bail.
And that includes the broader system of pretrial release as well. Whether you get ankle monitors and all this sort of thing, whether you get a PR bond, whether you have to post bail, whether you’re remanded in jail and denied bail altogether. All the different things that happen when somebody gets arrested- pending trial, are things that I’ve worked on- and also published articles on over the last decade, a couple in law journals and law reviews and that sort of thing. So, I’ve become a little bit of an expert on all things related to the pretrial system in the United States
[00:04:42] Grumbine: So, what would you say is the primary thing you seek to reform? Understanding clearly that you’re trying to at least preserve some means of bail, what exactly is it you’re trying to achieve through this?
[00:04:57] Clayton: One, I think, obviously, just protection of the existing right to bail. Which, in my mind and for the civil libertarian background that I come from, is the ability for the public to challenge the government’s decisions on incarceration. In places where there’s no bail, that’s pretty much the government’s decision, and there’s no way to do that.
So, we think preserving that is important. But the second thing to keep in mind is, over history and really the branch of history starting in 1984 in the federal system, but also in states, is this movement to deny bail altogether. To just say that we’re not going to offer you a release, pending trial, or the ability to post bail.
And that’s been a growing way that we’re increasing mass incarceration, particularly in the federal system. It’s gone from 24% pretrial detention rates, up to 75-76% today, by denying bail and just saying, ‘Oh, we think you’re dangerous and we can keep you in jail.’ So, the new movement over the next 10 years, is going to be to roll back the concept of ‘preventative detention’, which I don’t think the founders thought was constitutional. I think Justice Rehnquist thought it was. I think this Supreme Court and looking at what colonial systems and what the early history of pre-trial incarceration came up with another way to lock people up. This time without bail altogether and without any ability for the public to challenge it.
[00:06:17] Grumbine: From my vantage point, I definitely subscribe to civil libertarian thinking on many issues, and this would be one of them as well. To me, I see the whole point of bail, as a black eye on the system as a whole because it’s the reason why people are going to jail. Most of the people that are going to jail for crimes that are violent or theft, these are crimes that get everybody’s attention because everybody’s concerned about losing their private possessions, and worried about their own safety walking down the street.
These are legitimate fears, but I feel like the reason why we’re even getting to a point of bail, is because we have failed the people. We failed the country, to provide meaningful work, to be able to give them a right to pursue happiness. You can’t have justice without economic justice. There’s an entire underclass in this country, that serves as a funding mechanism for local police departments through fines, fees, and penalties… and through a host of other ways of attacking them and predating upon them.
And then we say, ‘well, those criminals,, let’s put them in jail.’ And we never really addressed the problem. We just basically put it on the individual and say, “You’re a failure, you’re the reason why you’re in jail.” I think about bail as the final thing to happen, that failed that individual and failed society. Because the people that are getting hurt by crime would have been helped, had they been around to help that individual prior to the crime, in my opinion.
I feel like society is a group of laws and functioning economies and functioning support systems, that if they don’t work together, they generate negative outcomes and criminal behavior. Or at least criminal, in terms of the laws that we have on the books, that they have violated, and in many cases, just for survival.
Your thoughts.
[00:08:23] Clayton: Well, I think a good way to view this, is what Thurgood Marshall said of the bail system, and in general. And because we don’t have a criminal process that we think works, particularly, I think it’s fair to say that it doesn’t rehabilitate. There are lack of economic opportunities, and that is the number one criminogenic need, is a job and housing, those are the number one and two that drive these things. But Thurgood Marshall said ‘the way to view the bail system- particularly beginning in 1984, 1987, when he wrote these words were- look at it as a shortcut to a conviction.’
And that’s what it is. That’s what it has turned into. We will put you on pre-conviction supervision now. We’ll put you on an ankle monitor now. We’ll make you do drug screenings now. We’ll make you do all this stuff now. If you look back in history, I think what we’re trying to go to, is what New York was able to achieve in the late 80s-90s, which is a pretrial incarceration rate between 10 and 20% and low crime. And it’s doable.
But what we’ve done in the intervening time period is, we’re taking all these shortcuts to convictions, through the bail system, by saying ‘we think you’re dangerous, your bail is high, you stay in jail.’ We think you’re dangerous, we’ll put you on all this stuff. Because we don’t devote enough energy to, 1) getting to a conviction, and 2) figuring out something that’s going to get these people on a pathway to a better life.
And we know we’ve made medical things- like recovery, treatment and all that- punitive. In California they said, ‘what do you think the number one thing we could do to help people would be?’
And I’d say, you’ve got pretrial services, but it is the dragnet of the state. It is an arm of the prosecutor, and if you fail, you’ll get continually prosecuted. If you really want to give people pretrial services, give them the services: give them the drug treatment, the economic opportunities, job training, and all the different things they need. But the main thing is going to be housing and jobs. Those are the two number one criminogenic factors that every probation officer would tell me, over the five years, that people need.
And that’s why people eventually will age out of crime- 30s, 40s- because that’s the magic time period. If they can stay out of prison and not have to join a prison gang and all this stuff, they will eventually be able to get economic opportunities and move on, out of a life crime. But unfortunately, the period between 20 and 25, we’re doing a miserable job on.
So, shortcuts to convictions. That’s what the bail system has become, and what we’ve got to reverse.
[00:10:40] Grumbine: Given what you’re describing, what got you involved in pursuing this? You’ve had a career in government, you’ve had a career as an activist, so to speak, from the position you’re at currently. What do you think your primary goal is at this point?
[00:10:58] Clayton: Well, I think it would be reversing US versus Salerno. Allowing this opportunity to deny bail, and the federal system, going from 24% incarceration to 76%. I watched that and I worked on this issue when I was in college, by weird coincidence, for a summer. And so, I’ve seen this movie happen over all this time. So, that is ultimately my goal.
How did I get into this? When I saw the Pretrial Justice Institute, the ACLU and others, advocating to replace bail with preventative detention and risk assessment tools, using computer algorithms, I said ‘I’m on firm ground here.’ And people might not like corporate bail bondsmen and all these kinds of guys, but you know what, they’re funding me to stop you.
And that, to me, was enough to say, ‘I’m going to stop this movement.’ And you know what? Hopefully we’ll go back to, ‘yeah, more people should get out on a PR bond which is what we should have been advocating for in the beginning. Which is, ‘we don’t need bail on these cases’, not ‘we’re going to create a regime of computer algorithms and detention.’
And that we’re going to take that to the voters in California- which we actually funded to defeat- but that was the proposal. And so, that’s what really got me was that my friends, the ACLU, who should have been the ACLU, who always were the ACLU, would have never gone for that. And certainly in 1984, when they testified before Congress, they didn’t go for that.
They said that was outrageous. And if you read the dissent in Salerno, Justice Thurgood Marshall calls it ‘tantamount to the police state’, and that this was one of the most unbelievable crossroads in American criminal jurisprudential history, is where we are. And now we have an ACLU advocating for those policies.
That’s what got me. That’s what told me I’ve got to do something. And yes, I’m going to have to go work for corporate insurance companies, but you know what, they believe in this pathway out of jail. And another thing that got me was, a former public defender friend of mine said, ‘Jeff, this is about pathways out of jail, that movement eliminates your pathway out and creates another pathway to stay in, and that’s bad, that’s bad. What we should be advocating for, Jeff, is against you, not against preventative detention, right? We should be fighting against whether people need a bail or not, and that’s what we’ve been fighting out over for centuries, and that’s what we should have kept fighting over.
And that movement to detention is what really got me into this.
[00:13:08] Grumbine: How does a person of limited means, or no means, survive with this bail system? Bail is geared towards people that have the ability to do it. And yet the point of bail, is a down payment on you behaving. That’s- I’m assuming- what the point of it all is, is that if you put this money up there, you’re going to probably not flee. You’re going to probably follow instructions, etc. Is it really available to all? This doesn’t feel like it’s available to all.
[00:13:40] Clayton: It’s not, and that’s where people get concerned about it. I think the reality is that, I would say, only 5% of defendants actually afford the bails they post. I think 95 to 90% of them are posted by other people. So, when you view it that way, it really is your ties to the community, and whether third parties believe that you’re going to show up and that they’re willing to take the risk on you.
I think where people get uncomfortable, is on these low level charges. And over the 10 years, we’ve seen places where a bail schedule, that just has the list of the charges and the amounts, can detain people for a long time before they see a judge. On a bail that a judge is going to say is too high, and ultimately say you don’t need a bail.
And so, that’s been the real black stain on things, unnecessary bails on some of these low cases. We saw that in my home state, where the ACLU wanted to get rid of bails, petty thefts under $300, municipal charges, sleeping on a park bench, and this sort of thing. Because the only people that it really ensnared was unhoused people. And people that had substance use disorders and all this sort of thing, were probably the people that were going to get ensnared on a couple hundred dollar bail. And that just didn’t feel comfortable and that there should be some kind of a minimum bail. There’s tension with the constitution on that, because if they’re poor, they should get a low bail.
But that really has been the problem, and what to do about that. And really, it’s just trying to find alternatives, and trying to find people that are releasable, that aren’t a danger. But really, what are we going to do with people that are just broken people, that are continuing to do it over and over again.
And unfortunately they just get stuck in the bail system. And there’s really no answer in terms of bail reform or not bail reform. It’s just, ‘what do we do with these broken people, and how do we fix them, and how do we get them going somewhere else?’
[00:15:16] Grumbine: I think recidivism is a word that’s in abolition movements and policing movements. I’m falling much closer to the abolitionist movement. But if we have this system, and it ain’t going away- not without a huge movement of people very interested in making it go away- that means that working within the system, which feels very reformist, which this is bail reform. Do you feel like there is a movement in fact, embracing bail reform, or do you feel there is a movement against bail reform, to try to make it more punitive, more embracing of that ‘guilty before proven guilty.’
[00:16:02] Clayton: There is a movement to move in that direction. You’ve got legislation in Tennessee to increase preventative detention- for the first time- on 32 new charges. You’ve got states saying you don’t get out on free bail, on any number of charges. You’ve got my home state of Colorado putting out legislation to say, we’re going to have a $7, 500 minimum bail on a certain number of charges. So, I think there is pushback. I think there is a movement to get harsher. I’m not sure we’re really leading that. I think there’s certain charges that we think putting the, ‘you don’t get out for free unless you see a judge’ is a good thing, to have judges look at them. But ultimately, judges have discretion on that and I think that’s a good thing.
I do think that we need to put more scrutiny on what judges are doing in this context, because so much of this is controlled by the judiciary. And they have so much discretion on bail, on other areas that, really, their decisions are bulletproof. And what they do, the public never finds out about.
And so, there’s a big fight over that. Whether it’s okay to put out statistics that just say judges process this many cases this fast, or whether we can get into substantive things like what were the bails and, what are the recidivism rates, and what are the new crimes and what were the sentences, how do they sentence within the ranges compared to other judges like that?
Data is what judges don’t want to put out, that I think the public needs to see.
[00:17:23] Grumbine: What are the fault lines in these different ideological views of this, it seems like there’s a civil libertarian angle here. What are the various interests that are playing into this?
[00:17:35] Clayton: Well, I think it’s almost just a simple ‘soft on crime, hard on crime’ debate. And then I think the word ‘catch and release’ comes into it all the time. Oh, the ink’s not dry on the police report before we let them out. Well, that’s supposed to happen 80% of the time, if things are functioning correctly. That we’re only ensnaring to a maximum of maybe 20% of the most dangerous people, that are going to flee and need to stay in jail.
So, that’s a pro-law enforcement side, is that we just keep releasing these people over and over again. And of course, what Thurgood Marshall would say is ‘it’s because you’re not convicting.’ You’re not convicting, there’s not a criminal intervention and you’re not deterring, and that’s why.
It’s that you’ve taken a shortcut to try to say, ‘let’s just keep them in jail as long as we can.’
And that’s what’s happened. You look at South Carolina, for example; felony charge, you don’t post bail, crucial issue, right?, because if you don’t, two years. The average felony case takes two years to resolve. That’s a long time in jail. On the other side, I think it’s really just as simply the argument that ‘we don’t need pretrial detention, that pretrial detention erodes the presumption of innocence.’
I think that’s right. I think the other thing is that, there’s a concept called ‘sub rosa detention’, which really dates from the states trying to copy the federal system, but doing a bad job, which is ‘now we’re going to have judges look at public safety and future dangerousness.’
A new concept we put into this criminal enterprise in the ’80s, and that has now become what people think bail is. Is he going to do it again? Well, if he’s going to do it again, we say his bail is now going to be a hundred thousand instead of ten thousand, cause he’s going to do it again. But if he posts it, he’s going to do it again, so what have we really done?
We’ve created a system of preventative detention through the monetary bail system, and we’re trying to reform that because it should just be an appearance bond. That’s what it has been throughout American history, and that’s what it needs to be.
I think people go, ‘well, Jeff, you might not make as much money.’ Not really, because in essence, the people that aren’t posting, are the ones these bonds are so high on. We would still be around, and we were around and we were fine, long before this movement toward sub rosa and preventative detention all began.
So but, maybe that we don’t make as much money, but we see that as a better and more ‘in line with constitutional rights’ system. And so, that’s where I think we’re trying to go.
[00:19:43] Intermission: You are listening to Macro N Cheese, a podcast by Real Progressives. We are a 501(c)(3) nonprofit organization. All donations are tax deductible. Please consider becoming a monthly donor on Patreon, Substack, or our website realprogressives.org. Now back to the podcast.
[00:20:06] Grumbine: We’re largely a macroeconomics podcast, and so we tend to focus on the capabilities of the state to alleviate the pain points. And one of the things that our organization has advocated for the last 10 years, along with a lot of other academics and other activists and practitioners, is a federal job guarantee- with federal benefits- and doesn’t care whether you’re unhomed and have a criminal record.
In fact, some of the stuff that happened post-slavery. And the 13th amendment with vagrancy laws, and picking people up; ‘You’re not working, okay, well, you’re guilty’ and then locking them up, and then getting free labor from them. There’s always been a very unequal justice in this country and it hasn’t changed.
It changes with the words, it changes with the focus, we frame things differently. So there’s all these different moves to change the way we say things, but fundamentally, we’re still very unequal, and wrought with- I don’t want to use the word prejudice, it is prejudice, but not like in the way that it’s weaponized- you’re judging something before the circumstances.
And so, if we know that having a job is a core deterrent, a federal job guarantee is a pre-preventative salve, as opposed to convicting on future crime- like a 1984 novel- we’re looking at an opportunity to prevent crime, by giving people hope and a future and purpose. I wonder, because, for example, a federal job guarantee, paid for by the federal government, providing socially valuable work, not necessarily capitalist driven work that has a profit motive to it, but more so whatever a local community wants, to enhance its well being, the wellbeing of all.
This is something that could be given to even immigrants, to prevent any of the other stuff that we see happening at the Southern border right now. Yes, you can be tough on crime, but people still make it through, and then you end up with a bunch of dead people or a bunch of people in jail, in cages. Things that no civil libertarian would want to see, because you don’t want to see people coerced and imprisoned.
So, to me, I think the framing of bail, in general, needs to be coupled with the conditions that people walk into, the material conditions of their existence. What do you think we could do- as a group- from my vantage point, from what we’re trying to advocate for, how could we leverage bail reform, while leveraging a macroeconomic justice reform?
How could they marry together? Because I feel like people really get hell bent on keeping people in jail, because they don’t fundamentally understand what drove the behavior to begin with. They just think people are naturally bad. And I don’t believe that.
[00:23:19] Clayton: No, I think the big missing opportunity is the statutory factors that correlate with what we think of riskiness in bail. That’s the big missing opportunity that nobody’s going into. And you’ll be surprised to hear this. What do you think the number one factor is, that people are using in risk algorithms and bail in this country to determine if you get bail or not?
And the answer is age at first arrest. Okay. That is the number one factor that they’re using right now. And the real question, is that fair? And so, I met with a staffer- who shall remain unnamed- who worked for Congressman Danny Davis, and I told him this and he said, ‘that’s outrageous!’ And I said, ‘why is that outrageous?’
He said, ‘well, I borrowed my mom’s moped when I was 14, and I went joyriding through the South side of Chicago, and of course, because I’m black, I got arrested. And my mom had to come pick me up. And so you’re telling me, for the rest of my life, I’m high risk?’
And the answer is you are, under those instruments, and there’s nothing that can be done about that.
So, I think that’s a problem, that’s one opportunity. The other thing you’re talking about with the basic income, let’s call it what it is, I think the disparate impact of housing in this country- the idea that historically oppressed communities live in these bad neighborhoods- is the number one cause in lack of opportunity in those neighborhoods.
I don’t think anybody would deny that. How do you fix that? I think that is the bazillion dollar question. And having a basic income, yeah, of course. I think every probation officer in the country would say that would help if they had stable housing, and they had no excuse for not having stable housing, because they couldn’t take the stable housing money and go spend it on something else.
That’s the key, is can you guarantee that these people have stable housing, and that it’s not going to be like the projects? Because when we put people in these terrible housing units, it just compounds the problem. So, I agree with you that something needs to be done, that opportunity needs to be created.
But I also think there are major opportunities within the existing statutory framework to say, ‘you know what, that’s a backward looking standard that we’re just not going to use anymore, because that presumes somebody is a bad person’
[00:25:22] Grumbine: Amen.
[00:25:23] Clayton: not somebody that, under the right conditions, would bloom into a good person, which a lot of people will.
And we’re just assuming that because you got arrested when you’re 14, then forget it, you’re always high risk, and that your bail should be higher. Or you should go to jail.
[00:25:36] Grumbine: That’s insane. The story that I told you offline about my arrest, if you heard my Finding Your Why podcast, going back a month or so, that talked about this. I sat in a jail cell with five young black kids, and I had- in a blackout drunk- purchased two ounces of marijuana. These kids had a joint. They released me- as a white man- no bail required. These kids, ‘we’re going to put bail in a way that you can’t really achieve, so you’re going to stay here for the next two weeks.’
So, let me ask you, what are some of the movements right now, within what you’re working on, to make this change happen. Where are the success stories happening? Where is the positive momentum?
[00:26:27] Clayton: Well, I’m not really sure there is much positive momentum going right now. I think the crime wave is tightening up the bail system. You look, even in like Los Angeles, for example. They had ‘Oh, we need to change the bail system because it’s unfair.’ And what they said was, ‘okay, we’re going to take medium risk charges and say, you get a presumption of release on your own recognizance.’
But what ended up happening is the magistrates are denying the pre-release 89.7% of the time, thus ensnaring people in jail longer. So unfortunately, I don’t think it is happening. I’m not seeing progress.
[00:26:58] Grumbine: It’s all negative.
[00:26:59] Clayton: It pretty much is, I don’t see a good pathway out. You look at Illinois. Okay, well, we got rid of bail, but what’s happened is, the Supreme Court said you could do preventative detention. And so, there’s 49 new bills in the legislature to expand that, and that’s going to go on over years. Just to reflect on what you were saying earlier, we had one pretrial program, advocating to change state law to add fatherlessness as a factor, because they thought that was the number one factor.
And we were going to use that as another means to discriminate, based on people’s bail. So, it’s just gotten out of hand, of what the entire criminal justice system is going to do. But I think Justice Marshall certainly predicted that we would get here, that when we moved the criminal justice system away from defining the crimes, and punishing the offenders, to all this other stuff, and taking all the shortcuts to conviction and all this other stuff, it was just going to get worse. And I think that’s what we’ve done, and we’ve got to move away from that.
The criminal justice system is just not the answer. We need it to deter. If it does deter, it is good. We need justice for victims, etc.
I get all that, but really overcomplicated the thing and created, really, a complex. Because you look at all the supervision dragnets in this country for probation and pretrial services even, that’s paid for by the defendant. You’re paying for your own government program to ensnare you in another charge.
That’s what a public defender here in Colorado used to always say ‘you’re just setting people up to fail.’ You’re going to pay for somebody to monitor you. You’re an alcoholic, we’re telling you to stop drinking, if you have one beer, it’s a new felony. How is that a good answer to the problems we have going on in society?
It’s really not.
[00:28:32] Grumbine: It’s not at all. In fact, you mentioned at the beginning, that some of the people that you would expect to be supporting bail reform, aren’t. Tell me who the resistance is. It seems like it’s not one group, it’s a bunch of groups. Everybody seems to be opposing this. What are we up against?
[00:28:51] Clayton: Well, I think the one thing that has happened that is really unfortunate- and this was predicted by Caleb Foote, who wrote an article in the 1960s- is, if you hate money bail too much, you’re going to kill a way out for people. And that’s what’s happened. People say money bail is evil. Well, judges don’t do bail, they push toward detention, and that’s where things are going right now. And that’s dangerous. And that is a 40 year movement to incorporate your risk of future dangerousness, as the grounds for keeping people in jail. And that was egged on by reformers for 20 years, unfortunately. They got us here. So, I am trying to reverse that.
I can tell you that the author of the study that exposed the federal system- that it went from 24% pretrial detention to 75%- still believes in, unfortunately, the doctrine of preventative detention. Thinks we can just, as a system, agree that it will be lower. And our position is, William Blackstone said: ‘the only people that should stay in jail, are those for whom the four walls of the jail are needed.’ i.e. we’re going to execute them.
And I think because we’ve changed tastes toward the death penalty, the only real argument is, people facing a life sentence are the ones that should be denied bail. Everybody else should have the opportunity to get out, in some way or another. Or, the community should be able to say, you know what Mr. Prosecutor, we are going to pull together the million dollars and he is getting out, because we don’t like you, and we think you’re full of it, and we think this guy is innocent, and we will make sure he gets there to challenge you and your office. And I think we need that. I think that is a libertarian value. I think that is an American value to say, you know what? We don’t sometimes trust the state and we do need a valve out. And I think bail represents that.
And to diminish that institution- as we have done- has proven to be problematic. And I think history is showing that right now. And it’s my job to continue pushing that, because I think we can have a less mass incarcerated America and still have a low crime America.
[00:30:42] Steven Grumbine: Yeah, I don’t disagree with that, at least that summation anyway. When you talk about a libertarian viewpoint and being skeptical of the state, I think we have seen a lot of opportunity to be skeptical of the state. And taking a political angle, we have the genocide in Gaza that is occurring on behalf of the American country, public money being blown and spent to not only fund, but arm Israel to the point where it’s obscene.
15,000 children are dead. Not terrorists, children. And when I think about what the US federal government is willing to put its money behind, it’s rarely in helping people out. So, as a former libertarian, and as someone who does subscribe to civil libertarian thinking, it is very hard for me to blame people for being skeptical and cynical and resentful towards any form of government at this point, because all they’ve had the opportunity to see in their real ‘don’t believe your lying eyes’ lives has been a corrupt government that has done no favors for anyone.
And once you get in that system, you are a mark. There is nothing. There is no career path. There is no renting an apartment. All the things you need to do to stay out of jail are blocked, because they allow them to discriminate against these folks. So, recidivism, what is the recidivism rate? It’s huge. It’s outrageous, is it not?
[00:32:32] Clayton: It is. And then here we go, we’re going to run a bill to fix Memphis, by increasing pretrial incarceration. We’re going to change the Tennessee Constitution. And yet, the federal government is going to spend money to go to the moon. And we’ve got kids joining gangs, shooting each other in Memphis. We’re going to spend all this money on Ukraine.
We’re going to spend another $14 billion here and there. How far would that money go towards solving this issue of the incidents and badges of slavery that continue, and the disparate impact of housing discrimination in this country. How far would that money go? And why do we allow the federal government to get away with that?
We’re going to go back to the moon. We need to go fix Memphis, Tennessee. We don’t need to go to the moon. It’s outrageous. And to hear people talking about that, you don’t care. You don’t care about these communities because you’d rather go to the moon than go to Memphis. So go to Memphis and fix it. Then you can go to the moon.
That’s my opinion.
[00:33:20] Grumbine: From a priority standpoint, and from a resource allocation standpoint, your priority should be exactly what you just said. The flip to that though- and this is where our podcast and the work our nonprofit does as well, kicks in- because the fundamental understanding of the way the government spends, we can walk and chew gum. We’ve just been told that we can’t.
And so, when you see them deny every possible value that any human being in this country could enjoy. Any kind of improvement in their life is treated as if ‘that’s free stuff, that’s bad.’ So we shut the door on any of these things that would make life better, that would make life good, that everybody would enjoy.
There’s none of that. But they will build bombs to destroy lives around the world. There’s no amount too great to do that.
[00:34:19] Clayton: Oh yeah, absolutely. The public would be against the socialistic roads that we drive our capitalistic cars on, if we really understood what was going on…
[00:34:28] Grumbine: Absolutely.
[00:34:30] Clayton: but that’s the way it is, we just label something, something, and we call it capitalist, then it’s good.
[00:34:35] Grumbine: It’s crazy. I’m really incensed by this, because as somebody who got to experience the prison system, the more things crack down, the more protest is made illegal in this country, the more homelessness is made illegal in this country, instead of making the conditions that create homelessness illegal, they make being homeless illegal.
They put spikes on park benches. They do things that make life unbearable for the average person. And then regular people, they don’t know all these deep things. You can’t ask them to get a PhD in sociology. They’re just not going to do it. So with that in mind, you got to understand that there’s competing interests here and there’s no one taking the time to understand what’s at stake.
And, I don’t know that there’s a way around that part. To create empathy in people and recognize that by creating the environment that creates the crime, you create an unsafe condition for the people over here that want to be tough on crime. And so they’re reacting to their lived experience. They’re fearful, but they’re not understanding that the person on the other side has already been through fearful and afraid and is now just trying to survive.
And so you’ve got this juxtaposition of two class interests competing with one another, when in reality, they’re the same class interest and the same goals, they’re just going about it, in my opinion, the wrong way. We need to help one side and the other side has a right to be safe from harm. What are your thoughts on that combined view?
I feel like any one of them by themselves is incomplete. You need the fullness of this. To fix the system. Otherwise you’re just putting a bandaid on a heart attack.
[00:36:21] Clayton: Yeah, I think that’s true. And the reality is people assume there’s a criminal class, but the percentage of everybody that actually gets out and goes back into society is very high in 95 percent of these people will be back, after they get out of prison. And they have to join a prison gang unfortunately, because we put all the bad people together and we tell them to get along, which is another great way to handle things.
The reality is I think we can do a better job of fixing people. I believe in American enterprise. I do believe in capitalism. And if we said the new probation policy is we’ll give a corporation $50, 000 to fix this person and keep them recidivism free, we might be getting somewhere. Maybe we could invest in something that would be evidence based and that would have results, which is, Hey, let’s see if we can get them in a job.
Let’s see if we put them in a residential drug treatment facility for three months that we could actually get them off drugs. I think there is an opportunity, but like you said, You’ve got to put your money where your mouth is. And we just don’t do that in this country. We spend more servicing the debt than we do spending on programs that are actually going to help people.
And I think that needs to be the fundamental shift. Look at all the welfare programs and spending, but it is the majority of the federal government spending, but I just don’t think it’s working. I don’t think it’s helping. I think we need to either change it or we just need another massive infusion of it, perhaps at the state level to really just give people the safety net they need to get them going in the right direction.
This is America. We can do better. That’s my view.
[00:37:39] Grumbine: The reaction to inflation has been to raise interest rates on debt to raise interest rates on borrowing, et cetera. Well, as someone who understands the monetary system, and that’s what our entire MO is here is teaching people about the actual function of the monetary system and how our misunderstanding of it has created these problems. By raising interest rates, what they have done is created the fertile ground for inflation by pumping money through the interest income channel to people who already have money. So, the way to stop inflation is to pay off the people that are raising prices through interest rate hikes and you’re creating a situation where on paper, the GDP looks like the economy is great.
But on reality, that’s an aggregate. If you take away the outliers and you remove the interest income channel, we’re actually looking at more recessionary pressures. We’re looking at people that are working two and three jobs because wages have not kept up. We’re looking at a horrible situation where the very nature of the way the system is creating this.
You said you’re a capitalist. I’m a socialist. And to me, my belief is that whatever priorities we think we need, the only issue is do we have the real resources for it? We can finance and fund anything because we create the money out of thin air via Article 1, Section 8 of your US constitution, and Article 1, Section 10 keeps the states from doing it.
So the Constitution itself tells us how to do this. But we ignore that because we’ve been convinced that the sale of a bond is somehow or another, this burdensome debt when reality is all that interest income is brand new money being spent to rich people that already have money. And this is how the wealth gap widens.
This is how you end up with the circumstances that we’re facing, at least from my vantage point. There’s a better way. And I wouldn’t call it a basic income because a basic income allows predatory corporations, because what is a corporation’s number one job? Maximize shareholder value.
[00:40:00] Clayton: Right, consumer spending.
[00:40:02] Grumbine: And so what are they going to do? They’re going to maximize shareholder value, and that means that labor is going to hurt. Anything that they can cut on a product to create that kind of planned obsolescence is going to happen. There’s all these negative externalities that without some sort of a regulatory body or the ability for people to vote with their wallets, since everybody doesn’t have an equal share of the pie, they can’t participate in that kind of protest strategy.
So it’s a system that has been built for and by wealthy white landowners. And they have not relented in that ownership class going back to the dawning of the nation. And I think it’s just a fair thing to say that we are a long way away from solutions, no matter which way you are. And my concern is very real.
They just went through this hardcore fight over moving the Washington Capitals and the Washington Wizards out of the nation’s capital into the richest part of Virginia, in Arlington. It got defeated, but the rationale for this move was because of crime. Once you remove the last little bit of economic support for that region, it’s going to be all hell breaking loose.
[00:41:19] Clayton: Well, I guess we need to go back to the Washington Bullets. Part of the excitement is you had to go in a bulletproof car down to the stadium. That’s part of the home field advantage. No, I agree with you. There’s a lot to be done. And certainly John D Rockefeller is doing a whole lot better than we do a lot better in this America than maybe you would have done before.
And that’s unfortunate, And there’s answers to that. On our issue, we just keep slugging away. I think we don’t need a pretrial mass incarcerated society and we can do better than we’re doing. And so I’m just going to keep working on that.
[00:41:45] Grumbine: Thank you so much. I really appreciate it. Tell folks where they can find more of your work.
[00:41:52] Clayton: ambailcoalition.org, also on Facebook and formerly Twitter, X.
[00:41:58] Grumbine: Awesome. I really want to thank my guest Jeff Clayton for coming in, being a good guy, listening to my rants as well. I really appreciate the dialogue. Hopefully we can talk again in the future.
[00:42:09] Clayton: Absolutely. It was a good time. Have a good day.
[00:42:11] Grumbine: Absolutely. This is Steve Grumbine with my guest Jeff Clayton with Macro ‘N Cheese. We are out of here.
[00:42:29] End Credits: Production, transcripts, graphics, sound engineering, extras, and show notes for Macro N Cheese are done by the fantastic team of volunteers at Real Progressives, serving in solidarity with the working class since 2015. To support our work, please go to patreon.com/realprogressives, realprogressives.substack.com, or realprogressives.org.
GUEST BIO
Jeffrey J. Clayton joined the American Bail Coalition as Policy Director in May, 2015. He has worked in various capacities as a public policy and government relations professional for fifteen years, and also as licensed attorney for the past twelve years, working most recently as the General Counsel for the Professional Bail Agents of Colorado, in addition to serving other clients in legal, legislative, and policy matters. Mr. Clayton also spent six years in Government service, representing the Colorado State Courts and Probation Department, the Colorado Department of Labor and Employment, and the United States Secretary of Transportation.
Our Team – American Bail Coalition (ambailcoalition.org)
Another podcast interview:
Bail and Bonds, A Levy on the Poor? Jeffrey J. Clayton (substack.com)
Twitter (X):
@ambailcoalition
Facebook:
American Bail Coalition | Lancaster PA | Facebook
PEOPLE MENTIONED
Thurgood Marshall (8:25)
Thoroughgood “Thurgood” Marshall (July 2, 1908 – January 24, 1993)
Civil rights lawyer who used the courts to fight Jim Crow and dismantle segregation in the U.S. Marshall was a towering figure who became the nation’s first Black United States Supreme Court Justice. He is best known for arguing the historic 1954 Brown v. Board of Education case, in which the Supreme Court declared “separate but equal” unconstitutional in public schools.
Congressman Danny Davis (23:54)
Danny K. Davis was chosen by the people of the 7th Congressional District of Illinois as their Representative in Congress on November 5, 1996. He has been re-elected by large majorities to succeeding Congresses.
Biography | Congressman Danny K. Davis (house.gov)
Caleb Foote (26:27)
In 1965, the civil rights advocate Caleb Foote foretold a “coming constitutional crisis in bail.” Foote was an extraordinary law professor whose research stemmed from the multiple prison terms he served for conscientiously objecting to the draft. To Foote, an opponent of Japanese internment in the 1940s and of wealth-based detention in the 1960s, the crisis in bail seemed clearly imminent.
The Yale Law Journal – Forum: The Present Crisis in American Bail
William Blackstone (29:46)
Sir William Blackstone (born July 10, 1723, London, England—died February 14, 1780, Wallingford, Oxfordshire) was an English jurist, whose Commentaries on the Laws of England, 4 vol. (1765–69), is the best-known description of the doctrines of English law.
Sir William Blackstone | English Jurist & Legal Scholar | Britannica
John D. Rockefeller (41:32)
John D. Rockefeller (July 8, 1839–May 23, 1937) was an astute businessman who became America’s first billionaire in 1916.
John D. Rockefeller, America’s First Billionaire (thoughtco.com)
INSTITUTIONS / ORGANIZATIONS
American Bail Coalition (1:32)
The American Bail Coalition is a trade association made up of national bail insurance companies who are responsible for underwriting criminal bail bonds throughout the United States of America. The Coalition also includes affiliate bail agent members from across the United States. The Coalition’s primary focus is to protect the constitutional right to bail by working with local and state policymakers to bring best practices to the system of release from custody pending trial.
Home – American Bail Coalition (ambailcoalition.org)
Pretrial Justice Institute (11:24)
PJI informs, inspires, and mobilizes local pretrial changemakers working to end mass incarceration.
Our Mission | Pretrial Justice Institute
ACLU (11:24)
In November 1919 and January 1920, in what notoriously became known as the “Palmer Raids,” Attorney General Mitchell Palmer began rounding up and deporting so-called radicals. Thousands of people were arrested without warrants and without regard to constitutional protections against unlawful search and seizure. Those arrested were brutally treated and held in horrible conditions. In the face of these egregious civil liberties abuses, a small group of people decided to take a stand, and thus was born the American Civil Liberties Union.
ACLU History | American Civil Liberties Union
From this episode (9:57-10:38):
“… if you really want to give people pretrial services, give them the services, give them the drug treatment, the economic opportunities, job training, and all the different things they need… but the main thing is going to be housing and jobs.’ Those are the two number one criminogenic factors- that every probation officer would tell me, over the five years- that people need.”
CONCEPTS
Pretrial Release (4:15)
The purposes of the pretrial release decision include providing due process to those accused of crime, maintaining the integrity of the judicial process by securing defendants for trial, and protecting victims, witnesses and the community from threat, danger or interference.
Pretrial Release (americanbar.org)
PR Bond {Personal Recognizance Bond} (4:15)
Simply put, OR release is no-cost bail. Defendants released on their own recognizance need only sign a written promise to appear in court as required. No bail has to be paid, either to the court or to a bail bond seller. However, all other aspects of bail remain the same.
How Do Judges Decide to Release You on Your Own Recognizance? | Nolo
Bail (4:52)
the temporary release of a prisoner in exchange for security given for the prisoner’s appearance at a later hearing.
Bail Definition & Meaning – Merriam-Webster
Rehabilitate (8:35)
“Time spent in prison can deter offenders from future crime or rehabilitate offenders by providing vocational training or wellness programs. However, incarceration can also lead to recidivism and unemployment due to human capital depreciation, exposure to hardened criminals, or societal and workplace stigma.”
The Benefits of Rehabilitative Incarceration | NBER
US versus Salerno (11:01)
The Bail Reform Act of 1984 (Act) requires courts to detain prior to trial arrestees charged with certain serious felonies if the Government demonstrates by clear and convincing evidence, after an adversary hearing, that no release conditions “will reasonably assure . . . the safety of any other person and the community.”
“…There may be times when the Government’s interest in protecting the safety of the community will justify the brief detention of a person who has not committed any crime…”
United States v. Salerno :: 481 U.S. 739 (1987) :: Justia US Supreme Court Center
Recidivism (15:17)
Recidivism is one of the most fundamental concepts in criminal justice. It refers to a person’s relapse into criminal behavior, often after the person receives sanctions or undergoes intervention for a previous crime.
Recidivism | National Institute of Justice (ojp.gov)
Sub Rosa Detention (18:37)
{sub rosa- Latin- happening or done in secret}
Taken from: In re Humphrey Court of Appeal, First District, Division 2, California Jan 25, 2018: “… by setting bail in an amount it was impossible for petitioner to pay, effectively constituted a sub rosa detention order lacking the due process protections constitutionally required to attend such an order. Petitioner is entitled to a new bail hearing at which the court inquires into and determines his ability to pay, considers nonmonetary alternatives to money bail, and, if it determines petitioner is unable to afford the amount of bail the court finds necessary, follows the procedures and makes the findings necessary for a valid order of detention In re Humphrey, 19 Cal.App.5th 1006, 1014 (Cal. Ct. App. 2018)
In re Humphrey, 19 Cal.App.5th 1006 | Casetext Search + Citator
Federal Job Guarantee (20:29)
The job guarantee is a federal government program to provide a good job to every person who wants one. The government becoming, in effect, the Employer of Last Resort.
The job guarantee is a long-pursued goal of the American progressive tradition. In the 1940s, labor unions in the Congress of Industrial Organizations (CIO) demanded a job guarantee and Franklin D. Roosevelt supported the right to a job in his never realized “Second Bill of Rights”. Later, the 1963 March on Washington demanded a jobs guarantee alongside civil rights, understanding that economic justice was a core component of the fight for racial justice.
https://www.sunrisemovement.org/theory-of-change/what-is-a-federal-jobs-guarantee/
https://www.currentaffairs.org/2021/05/pavlina-tcherneva-on-mmt-and-the-jobs-guarantee
13th Amendment (20:41)
(1865) the Constitution of the United States that formally abolished slavery. Although the words slavery and slave are never mentioned in the Constitution, the Thirteenth Amendment abrogated those sections of the Constitution which had tacitly codified the “peculiar institution”.
Thirteenth Amendment | Definition, Significance, & Facts | Britannica
Vagrancy Laws (20:43)
Vagrancy, state or action of one who has no established home and drifts from place to place without visible or lawful means of support. Traditionally a vagrant was thought to be one who was able to work for his maintenance but preferred instead to live idly, often as a beggar.
Risk Algorithm (28:47)
In recent decades, risk prediction has proliferated in the penal realm. Risk instruments currently guide an array of correctional decisions – such as participation in diversion programs, the provision of correctional services, and probation and parole supervision levels – and are being increasingly utilized or considered in pretrial detention
Algorithms in the Criminal Justice System: Assessing the Use of Risk Assessments in Sentencing
use of these risk assessment tools: their incorporation into the criminal sen1 Ethan Chiel, Secret Algorithms That Predict Future Criminals Get a Thumbs Up From Wisconsin Supreme Court, Fusion (July 27, 2016), http://fusion.net/ story/330672/algorithms-recidivism-loomis-wisconsin-court/. 2 Julia Angwin et al., Machine Bias: There’s Software Used Across the Country to Predict Future Criminals. And It’s Biased Against Blacks., ProPublica (May 23, 2016), https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing. tencing process, a development which raises fundamental legal and ethical questions about fairness, accountability, and transparency.
2017-07_responsivecommunities_2.pdf (harvard.edu)
Basic Income (24:21)
Steve Grumbine – UBI (Universal Basic Income) vs FJG (Federal Job Guarantee) – YouTube
Housing Projects (24:59)
Public housing in the United States is administered by federal, state and local agencies to provide assistance for low-income households. Public housing is priced well below the market rate. It is provided in various settings and formats.
Originally public housing in the U.S. consisted primarily of one or more concentrated blocks of low-rise and/or high-rise apartment buildings. These complexes are operated by state and local housing authorities which are authorized and funded by the United States Department of Housing and Urban Development. More than 1.2 million households currently live in public housing of some kind.
Short History of Public Housing in the US (1930’s – Present) | HomesNow!
Preventive Detention (27:08)
Preventive detention, the practice of incarcerating accused individuals before trial on the assumption that their release would not be in the best interest of society—specifically, that they would be likely to commit additional crimes if they were released. Preventive detention is also used when the release of the accused is felt to be detrimental to the state’s ability to carry out its investigation.
In 1984 the U.S. Congress adopted a preventive detention act allowing federal courts to detain arrestees pending trial if the government could show that no release conditions could protect the safety of persons and the community. The act was challenged before the U.S. Supreme Court in United States v. Salerno, decided in 1987.
Preventive detention | Definition, Pros & Cons | Britannica
Bond (39:28)
1.a signed promise to pay an amount to do something on a date. Documents like contracts and loan agreements are bonds.
2.a contract with three parties. One party gives guaranty to a customer that a contractor will perform the actions agreed to.
BOND Definition & Meaning – Black’s Law Dictionary (thelawdictionary.org)
Planned Obsolescence (40:13)
“creative waste”—the idea that throwing things away and buying new ones could fuel a strong economy. Its authors, Roy Sheldon and Egmont Arens, identified the desire for ever-more-modern consumer goods as something unique to America, with its “enormous natural resources.”
The Birth of Planned Obsolescence – JSTOR Daily
Negative Externalities (40:17)
Negative externality, in economics, the imposition of a cost on a party as an indirect effect of the actions of another party. Negative externalities arise when one party, such as a business, makes another party worse off, yet does not bear the costs from doing so.
Negative externality | Definition, Economics, Examples, & Facts | Britannica
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Show Notes
Transcript
Extras
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When most of us think about bail, we focus on the financial burden it presents to the accused. This week’s guest is Jeffrey J. Clayton, Executive Director of the American Bail Coalition. He talks to Steve about the complicated anti-democratic trap that is our criminal justice system.
Jeff explains that across the US there are plans in place to eliminate bail. (One would think that’s good news. One would be wrong.) In reality, these plans result in greater violations of civil liberties. Bail is being replaced by pre-trial incarceration and risk assessment tools using computer algorithms (AKA profiling?)
In his dissent in United States v. Salerno, Justice Thurgood Marshall warned that we are quickly moving to a criminal justice system where “a person innocent of any crime may be jailed indefinitely.” Marshall called the bail system a shortcut to conviction.
Steve and Jeff discuss the most obvious ways to address crime – by providing jobs, housing, and education or training. Some caught up in the criminal justice system need recovery treatment. In the US, those healthcare services have become punitive. Jeff refers to them as the dragnet of the state.
Steve speaks of addressing the material conditions that contribute to criminal behavior. He brings up the concept of a federal job guarantee and talks about resource allocation and macroeconomic justice.
Jeffrey J. Clayton serves as the Executive Director of the American Bail Coalition (ABC). He holds a B.B.A. from Baylor University, an M.S. in Public Policy from the University of Rochester, N.Y., and a J.D. from the Sturm College of Law, University of Denver.
Macro N Cheese – Episode 274
Is Bail Reform the Answer? with Jeff Clayton
April 27, 2024
[00:00:00] Geoff Ginter [Intro/Music]: Here’s another episode of Macro N Cheese with your host, Steve Grumbine.
[00:00:45] Steven Grumbine: All right, this is Steve with Macro N Cheese. I’ve been talking some weird stuff lately. I have talked about Julian Assange, and prior to that we dove into class and modern monetary theory. So we’re going all over the place. They all tie together with a common theme, and that’s the impact that macroeconomics has on our lives and on the very freedom that we think- or don’t think- we have. Today is going to be no exception to that.
We’re going to go down another path, that maybe seems unconnected, but I assure you by the end of this conversation you will see some connections, and hopefully we’ll have a different point of view. My guest today is Jeffrey J. Clayton, he is the executive director of the American Bail Coalition, and we’re going to talk today about bail reform, and crime and punishment in America.
And everyone knows my story. We’re talking about a transformation, from a conservative- that just believed what was being told to him, to a libertarian- who didn’t believe anything that was told to him, to a ‘drive-by’ through the Democratic Party, and then on to something independent. Let’s just call me an MMT informed leftist. The conversation today is going to be discussing bail reform and surrounding issues. Let me bring on my guest, Jeff Clayton, welcome to the show, sir.
[00:02:11] Jeff Clayton: Thanks for having me on.
[00:02:13] Grumbine: Absolutely. I didn’t know what to expect. Your PR person came to me and said, ‘we’d like to see if you’d like to talk about bail reform, criminal reform, jail reform, and prison reform.’
Yeah, of course I would. And I didn’t understand the angle you came from, and so I did a little bit of digging. And this is going to be an interesting conversation, to say the least. But I think it’s a conversation that needs to be had, and not in an echo chamber. Because this is about trying to better understand the very real concerns of the public, who deal with the outcomes of crime, and the very real issues that generate crime through what I believe are austerity measures. And a state that requires a permanent underclass, to maintain an upper class. And I think it’ll make for a great conversation. So, what can you tell me about what you do at the American Bail Coalition?
[00:03:13] Clayton: Absolutely. So, about 10 years ago, I was approached by the coalition in a time period of bail reform, that I’m sure you’re well familiar with. Really, the idea that we’re going to end money bail and go to something else. And obviously that would concern insurance companies who underwrite bail bondsmen throughout the country, to say, ‘should we go to that model or not?’
And I took it on to not go to that model, to preserve- at least in some respect- the idea that there would be a right to bail by sufficient sureties. And so for the last 10 years I’ve studied the issue- obviously I was well familiar with it before having worked 10 years as an attorney, working for the Colorado State Probation Department for five years, and just having been familiar with the issue, having studied it, took it on. And the idea was, we’re going to protect this pathway out of jail, this right to bail in the United States. And I’ve traveled to 35 state capitol cities, testified in front of various committees at legislatures. I’ve talked to federal legislators about it. I’ve talked to judges, chief justices, about bail and all the iterations of bail.
And that includes the broader system of pretrial release as well. Whether you get ankle monitors and all this sort of thing, whether you get a PR bond, whether you have to post bail, whether you’re remanded in jail and denied bail altogether. All the different things that happen when somebody gets arrested- pending trial, are things that I’ve worked on- and also published articles on over the last decade, a couple in law journals and law reviews and that sort of thing. So, I’ve become a little bit of an expert on all things related to the pretrial system in the United States
[00:04:42] Grumbine: So, what would you say is the primary thing you seek to reform? Understanding clearly that you’re trying to at least preserve some means of bail, what exactly is it you’re trying to achieve through this?
[00:04:57] Clayton: One, I think, obviously, just protection of the existing right to bail. Which, in my mind and for the civil libertarian background that I come from, is the ability for the public to challenge the government’s decisions on incarceration. In places where there’s no bail, that’s pretty much the government’s decision, and there’s no way to do that.
So, we think preserving that is important. But the second thing to keep in mind is, over history and really the branch of history starting in 1984 in the federal system, but also in states, is this movement to deny bail altogether. To just say that we’re not going to offer you a release, pending trial, or the ability to post bail.
And that’s been a growing way that we’re increasing mass incarceration, particularly in the federal system. It’s gone from 24% pretrial detention rates, up to 75-76% today, by denying bail and just saying, ‘Oh, we think you’re dangerous and we can keep you in jail.’ So, the new movement over the next 10 years, is going to be to roll back the concept of ‘preventative detention’, which I don’t think the founders thought was constitutional. I think Justice Rehnquist thought it was. I think this Supreme Court and looking at what colonial systems and what the early history of pre-trial incarceration came up with another way to lock people up. This time without bail altogether and without any ability for the public to challenge it.
[00:06:17] Grumbine: From my vantage point, I definitely subscribe to civil libertarian thinking on many issues, and this would be one of them as well. To me, I see the whole point of bail, as a black eye on the system as a whole because it’s the reason why people are going to jail. Most of the people that are going to jail for crimes that are violent or theft, these are crimes that get everybody’s attention because everybody’s concerned about losing their private possessions, and worried about their own safety walking down the street.
These are legitimate fears, but I feel like the reason why we’re even getting to a point of bail, is because we have failed the people. We failed the country, to provide meaningful work, to be able to give them a right to pursue happiness. You can’t have justice without economic justice. There’s an entire underclass in this country, that serves as a funding mechanism for local police departments through fines, fees, and penalties… and through a host of other ways of attacking them and predating upon them.
And then we say, ‘well, those criminals,, let’s put them in jail.’ And we never really addressed the problem. We just basically put it on the individual and say, “You’re a failure, you’re the reason why you’re in jail.” I think about bail as the final thing to happen, that failed that individual and failed society. Because the people that are getting hurt by crime would have been helped, had they been around to help that individual prior to the crime, in my opinion.
I feel like society is a group of laws and functioning economies and functioning support systems, that if they don’t work together, they generate negative outcomes and criminal behavior. Or at least criminal, in terms of the laws that we have on the books, that they have violated, and in many cases, just for survival.
Your thoughts.
[00:08:23] Clayton: Well, I think a good way to view this, is what Thurgood Marshall said of the bail system, and in general. And because we don’t have a criminal process that we think works, particularly, I think it’s fair to say that it doesn’t rehabilitate. There are lack of economic opportunities, and that is the number one criminogenic need, is a job and housing, those are the number one and two that drive these things. But Thurgood Marshall said ‘the way to view the bail system- particularly beginning in 1984, 1987, when he wrote these words were- look at it as a shortcut to a conviction.’
And that’s what it is. That’s what it has turned into. We will put you on pre-conviction supervision now. We’ll put you on an ankle monitor now. We’ll make you do drug screenings now. We’ll make you do all this stuff now. If you look back in history, I think what we’re trying to go to, is what New York was able to achieve in the late 80s-90s, which is a pretrial incarceration rate between 10 and 20% and low crime. And it’s doable.
But what we’ve done in the intervening time period is, we’re taking all these shortcuts to convictions, through the bail system, by saying ‘we think you’re dangerous, your bail is high, you stay in jail.’ We think you’re dangerous, we’ll put you on all this stuff. Because we don’t devote enough energy to, 1) getting to a conviction, and 2) figuring out something that’s going to get these people on a pathway to a better life.
And we know we’ve made medical things- like recovery, treatment and all that- punitive. In California they said, ‘what do you think the number one thing we could do to help people would be?’
And I’d say, you’ve got pretrial services, but it is the dragnet of the state. It is an arm of the prosecutor, and if you fail, you’ll get continually prosecuted. If you really want to give people pretrial services, give them the services: give them the drug treatment, the economic opportunities, job training, and all the different things they need. But the main thing is going to be housing and jobs. Those are the two number one criminogenic factors that every probation officer would tell me, over the five years, that people need.
And that’s why people eventually will age out of crime- 30s, 40s- because that’s the magic time period. If they can stay out of prison and not have to join a prison gang and all this stuff, they will eventually be able to get economic opportunities and move on, out of a life crime. But unfortunately, the period between 20 and 25, we’re doing a miserable job on.
So, shortcuts to convictions. That’s what the bail system has become, and what we’ve got to reverse.
[00:10:40] Grumbine: Given what you’re describing, what got you involved in pursuing this? You’ve had a career in government, you’ve had a career as an activist, so to speak, from the position you’re at currently. What do you think your primary goal is at this point?
[00:10:58] Clayton: Well, I think it would be reversing US versus Salerno. Allowing this opportunity to deny bail, and the federal system, going from 24% incarceration to 76%. I watched that and I worked on this issue when I was in college, by weird coincidence, for a summer. And so, I’ve seen this movie happen over all this time. So, that is ultimately my goal.
How did I get into this? When I saw the Pretrial Justice Institute, the ACLU and others, advocating to replace bail with preventative detention and risk assessment tools, using computer algorithms, I said ‘I’m on firm ground here.’ And people might not like corporate bail bondsmen and all these kinds of guys, but you know what, they’re funding me to stop you.
And that, to me, was enough to say, ‘I’m going to stop this movement.’ And you know what? Hopefully we’ll go back to, ‘yeah, more people should get out on a PR bond which is what we should have been advocating for in the beginning. Which is, ‘we don’t need bail on these cases’, not ‘we’re going to create a regime of computer algorithms and detention.’
And that we’re going to take that to the voters in California- which we actually funded to defeat- but that was the proposal. And so, that’s what really got me was that my friends, the ACLU, who should have been the ACLU, who always were the ACLU, would have never gone for that. And certainly in 1984, when they testified before Congress, they didn’t go for that.
They said that was outrageous. And if you read the dissent in Salerno, Justice Thurgood Marshall calls it ‘tantamount to the police state’, and that this was one of the most unbelievable crossroads in American criminal jurisprudential history, is where we are. And now we have an ACLU advocating for those policies.
That’s what got me. That’s what told me I’ve got to do something. And yes, I’m going to have to go work for corporate insurance companies, but you know what, they believe in this pathway out of jail. And another thing that got me was, a former public defender friend of mine said, ‘Jeff, this is about pathways out of jail, that movement eliminates your pathway out and creates another pathway to stay in, and that’s bad, that’s bad. What we should be advocating for, Jeff, is against you, not against preventative detention, right? We should be fighting against whether people need a bail or not, and that’s what we’ve been fighting out over for centuries, and that’s what we should have kept fighting over.
And that movement to detention is what really got me into this.
[00:13:08] Grumbine: How does a person of limited means, or no means, survive with this bail system? Bail is geared towards people that have the ability to do it. And yet the point of bail, is a down payment on you behaving. That’s- I’m assuming- what the point of it all is, is that if you put this money up there, you’re going to probably not flee. You’re going to probably follow instructions, etc. Is it really available to all? This doesn’t feel like it’s available to all.
[00:13:40] Clayton: It’s not, and that’s where people get concerned about it. I think the reality is that, I would say, only 5% of defendants actually afford the bails they post. I think 95 to 90% of them are posted by other people. So, when you view it that way, it really is your ties to the community, and whether third parties believe that you’re going to show up and that they’re willing to take the risk on you.
I think where people get uncomfortable, is on these low level charges. And over the 10 years, we’ve seen places where a bail schedule, that just has the list of the charges and the amounts, can detain people for a long time before they see a judge. On a bail that a judge is going to say is too high, and ultimately say you don’t need a bail.
And so, that’s been the real black stain on things, unnecessary bails on some of these low cases. We saw that in my home state, where the ACLU wanted to get rid of bails, petty thefts under $300, municipal charges, sleeping on a park bench, and this sort of thing. Because the only people that it really ensnared was unhoused people. And people that had substance use disorders and all this sort of thing, were probably the people that were going to get ensnared on a couple hundred dollar bail. And that just didn’t feel comfortable and that there should be some kind of a minimum bail. There’s tension with the constitution on that, because if they’re poor, they should get a low bail.
But that really has been the problem, and what to do about that. And really, it’s just trying to find alternatives, and trying to find people that are releasable, that aren’t a danger. But really, what are we going to do with people that are just broken people, that are continuing to do it over and over again.
And unfortunately they just get stuck in the bail system. And there’s really no answer in terms of bail reform or not bail reform. It’s just, ‘what do we do with these broken people, and how do we fix them, and how do we get them going somewhere else?’
[00:15:16] Grumbine: I think recidivism is a word that’s in abolition movements and policing movements. I’m falling much closer to the abolitionist movement. But if we have this system, and it ain’t going away- not without a huge movement of people very interested in making it go away- that means that working within the system, which feels very reformist, which this is bail reform. Do you feel like there is a movement in fact, embracing bail reform, or do you feel there is a movement against bail reform, to try to make it more punitive, more embracing of that ‘guilty before proven guilty.’
[00:16:02] Clayton: There is a movement to move in that direction. You’ve got legislation in Tennessee to increase preventative detention- for the first time- on 32 new charges. You’ve got states saying you don’t get out on free bail, on any number of charges. You’ve got my home state of Colorado putting out legislation to say, we’re going to have a $7, 500 minimum bail on a certain number of charges. So, I think there is pushback. I think there is a movement to get harsher. I’m not sure we’re really leading that. I think there’s certain charges that we think putting the, ‘you don’t get out for free unless you see a judge’ is a good thing, to have judges look at them. But ultimately, judges have discretion on that and I think that’s a good thing.
I do think that we need to put more scrutiny on what judges are doing in this context, because so much of this is controlled by the judiciary. And they have so much discretion on bail, on other areas that, really, their decisions are bulletproof. And what they do, the public never finds out about.
And so, there’s a big fight over that. Whether it’s okay to put out statistics that just say judges process this many cases this fast, or whether we can get into substantive things like what were the bails and, what are the recidivism rates, and what are the new crimes and what were the sentences, how do they sentence within the ranges compared to other judges like that?
Data is what judges don’t want to put out, that I think the public needs to see.
[00:17:23] Grumbine: What are the fault lines in these different ideological views of this, it seems like there’s a civil libertarian angle here. What are the various interests that are playing into this?
[00:17:35] Clayton: Well, I think it’s almost just a simple ‘soft on crime, hard on crime’ debate. And then I think the word ‘catch and release’ comes into it all the time. Oh, the ink’s not dry on the police report before we let them out. Well, that’s supposed to happen 80% of the time, if things are functioning correctly. That we’re only ensnaring to a maximum of maybe 20% of the most dangerous people, that are going to flee and need to stay in jail.
So, that’s a pro-law enforcement side, is that we just keep releasing these people over and over again. And of course, what Thurgood Marshall would say is ‘it’s because you’re not convicting.’ You’re not convicting, there’s not a criminal intervention and you’re not deterring, and that’s why.
It’s that you’ve taken a shortcut to try to say, ‘let’s just keep them in jail as long as we can.’
And that’s what’s happened. You look at South Carolina, for example; felony charge, you don’t post bail, crucial issue, right?, because if you don’t, two years. The average felony case takes two years to resolve. That’s a long time in jail. On the other side, I think it’s really just as simply the argument that ‘we don’t need pretrial detention, that pretrial detention erodes the presumption of innocence.’
I think that’s right. I think the other thing is that, there’s a concept called ‘sub rosa detention’, which really dates from the states trying to copy the federal system, but doing a bad job, which is ‘now we’re going to have judges look at public safety and future dangerousness.’
A new concept we put into this criminal enterprise in the ’80s, and that has now become what people think bail is. Is he going to do it again? Well, if he’s going to do it again, we say his bail is now going to be a hundred thousand instead of ten thousand, cause he’s going to do it again. But if he posts it, he’s going to do it again, so what have we really done?
We’ve created a system of preventative detention through the monetary bail system, and we’re trying to reform that because it should just be an appearance bond. That’s what it has been throughout American history, and that’s what it needs to be.
I think people go, ‘well, Jeff, you might not make as much money.’ Not really, because in essence, the people that aren’t posting, are the ones these bonds are so high on. We would still be around, and we were around and we were fine, long before this movement toward sub rosa and preventative detention all began.
So but, maybe that we don’t make as much money, but we see that as a better and more ‘in line with constitutional rights’ system. And so, that’s where I think we’re trying to go.
[00:19:43] Intermission: You are listening to Macro N Cheese, a podcast by Real Progressives. We are a 501(c)(3) nonprofit organization. All donations are tax deductible. Please consider becoming a monthly donor on Patreon, Substack, or our website realprogressives.org. Now back to the podcast.
[00:20:06] Grumbine: We’re largely a macroeconomics podcast, and so we tend to focus on the capabilities of the state to alleviate the pain points. And one of the things that our organization has advocated for the last 10 years, along with a lot of other academics and other activists and practitioners, is a federal job guarantee- with federal benefits- and doesn’t care whether you’re unhomed and have a criminal record.
In fact, some of the stuff that happened post-slavery. And the 13th amendment with vagrancy laws, and picking people up; ‘You’re not working, okay, well, you’re guilty’ and then locking them up, and then getting free labor from them. There’s always been a very unequal justice in this country and it hasn’t changed.
It changes with the words, it changes with the focus, we frame things differently. So there’s all these different moves to change the way we say things, but fundamentally, we’re still very unequal, and wrought with- I don’t want to use the word prejudice, it is prejudice, but not like in the way that it’s weaponized- you’re judging something before the circumstances.
And so, if we know that having a job is a core deterrent, a federal job guarantee is a pre-preventative salve, as opposed to convicting on future crime- like a 1984 novel- we’re looking at an opportunity to prevent crime, by giving people hope and a future and purpose. I wonder, because, for example, a federal job guarantee, paid for by the federal government, providing socially valuable work, not necessarily capitalist driven work that has a profit motive to it, but more so whatever a local community wants, to enhance its well being, the wellbeing of all.
This is something that could be given to even immigrants, to prevent any of the other stuff that we see happening at the Southern border right now. Yes, you can be tough on crime, but people still make it through, and then you end up with a bunch of dead people or a bunch of people in jail, in cages. Things that no civil libertarian would want to see, because you don’t want to see people coerced and imprisoned.
So, to me, I think the framing of bail, in general, needs to be coupled with the conditions that people walk into, the material conditions of their existence. What do you think we could do- as a group- from my vantage point, from what we’re trying to advocate for, how could we leverage bail reform, while leveraging a macroeconomic justice reform?
How could they marry together? Because I feel like people really get hell bent on keeping people in jail, because they don’t fundamentally understand what drove the behavior to begin with. They just think people are naturally bad. And I don’t believe that.
[00:23:19] Clayton: No, I think the big missing opportunity is the statutory factors that correlate with what we think of riskiness in bail. That’s the big missing opportunity that nobody’s going into. And you’ll be surprised to hear this. What do you think the number one factor is, that people are using in risk algorithms and bail in this country to determine if you get bail or not?
And the answer is age at first arrest. Okay. That is the number one factor that they’re using right now. And the real question, is that fair? And so, I met with a staffer- who shall remain unnamed- who worked for Congressman Danny Davis, and I told him this and he said, ‘that’s outrageous!’ And I said, ‘why is that outrageous?’
He said, ‘well, I borrowed my mom’s moped when I was 14, and I went joyriding through the South side of Chicago, and of course, because I’m black, I got arrested. And my mom had to come pick me up. And so you’re telling me, for the rest of my life, I’m high risk?’
And the answer is you are, under those instruments, and there’s nothing that can be done about that.
So, I think that’s a problem, that’s one opportunity. The other thing you’re talking about with the basic income, let’s call it what it is, I think the disparate impact of housing in this country- the idea that historically oppressed communities live in these bad neighborhoods- is the number one cause in lack of opportunity in those neighborhoods.
I don’t think anybody would deny that. How do you fix that? I think that is the bazillion dollar question. And having a basic income, yeah, of course. I think every probation officer in the country would say that would help if they had stable housing, and they had no excuse for not having stable housing, because they couldn’t take the stable housing money and go spend it on something else.
That’s the key, is can you guarantee that these people have stable housing, and that it’s not going to be like the projects? Because when we put people in these terrible housing units, it just compounds the problem. So, I agree with you that something needs to be done, that opportunity needs to be created.
But I also think there are major opportunities within the existing statutory framework to say, ‘you know what, that’s a backward looking standard that we’re just not going to use anymore, because that presumes somebody is a bad person’
[00:25:22] Grumbine: Amen.
[00:25:23] Clayton: not somebody that, under the right conditions, would bloom into a good person, which a lot of people will.
And we’re just assuming that because you got arrested when you’re 14, then forget it, you’re always high risk, and that your bail should be higher. Or you should go to jail.
[00:25:36] Grumbine: That’s insane. The story that I told you offline about my arrest, if you heard my Finding Your Why podcast, going back a month or so, that talked about this. I sat in a jail cell with five young black kids, and I had- in a blackout drunk- purchased two ounces of marijuana. These kids had a joint. They released me- as a white man- no bail required. These kids, ‘we’re going to put bail in a way that you can’t really achieve, so you’re going to stay here for the next two weeks.’
So, let me ask you, what are some of the movements right now, within what you’re working on, to make this change happen. Where are the success stories happening? Where is the positive momentum?
[00:26:27] Clayton: Well, I’m not really sure there is much positive momentum going right now. I think the crime wave is tightening up the bail system. You look, even in like Los Angeles, for example. They had ‘Oh, we need to change the bail system because it’s unfair.’ And what they said was, ‘okay, we’re going to take medium risk charges and say, you get a presumption of release on your own recognizance.’
But what ended up happening is the magistrates are denying the pre-release 89.7% of the time, thus ensnaring people in jail longer. So unfortunately, I don’t think it is happening. I’m not seeing progress.
[00:26:58] Grumbine: It’s all negative.
[00:26:59] Clayton: It pretty much is, I don’t see a good pathway out. You look at Illinois. Okay, well, we got rid of bail, but what’s happened is, the Supreme Court said you could do preventative detention. And so, there’s 49 new bills in the legislature to expand that, and that’s going to go on over years. Just to reflect on what you were saying earlier, we had one pretrial program, advocating to change state law to add fatherlessness as a factor, because they thought that was the number one factor.
And we were going to use that as another means to discriminate, based on people’s bail. So, it’s just gotten out of hand, of what the entire criminal justice system is going to do. But I think Justice Marshall certainly predicted that we would get here, that when we moved the criminal justice system away from defining the crimes, and punishing the offenders, to all this other stuff, and taking all the shortcuts to conviction and all this other stuff, it was just going to get worse. And I think that’s what we’ve done, and we’ve got to move away from that.
The criminal justice system is just not the answer. We need it to deter. If it does deter, it is good. We need justice for victims, etc.
I get all that, but really overcomplicated the thing and created, really, a complex. Because you look at all the supervision dragnets in this country for probation and pretrial services even, that’s paid for by the defendant. You’re paying for your own government program to ensnare you in another charge.
That’s what a public defender here in Colorado used to always say ‘you’re just setting people up to fail.’ You’re going to pay for somebody to monitor you. You’re an alcoholic, we’re telling you to stop drinking, if you have one beer, it’s a new felony. How is that a good answer to the problems we have going on in society?
It’s really not.
[00:28:32] Grumbine: It’s not at all. In fact, you mentioned at the beginning, that some of the people that you would expect to be supporting bail reform, aren’t. Tell me who the resistance is. It seems like it’s not one group, it’s a bunch of groups. Everybody seems to be opposing this. What are we up against?
[00:28:51] Clayton: Well, I think the one thing that has happened that is really unfortunate- and this was predicted by Caleb Foote, who wrote an article in the 1960s- is, if you hate money bail too much, you’re going to kill a way out for people. And that’s what’s happened. People say money bail is evil. Well, judges don’t do bail, they push toward detention, and that’s where things are going right now. And that’s dangerous. And that is a 40 year movement to incorporate your risk of future dangerousness, as the grounds for keeping people in jail. And that was egged on by reformers for 20 years, unfortunately. They got us here. So, I am trying to reverse that.
I can tell you that the author of the study that exposed the federal system- that it went from 24% pretrial detention to 75%- still believes in, unfortunately, the doctrine of preventative detention. Thinks we can just, as a system, agree that it will be lower. And our position is, William Blackstone said: ‘the only people that should stay in jail, are those for whom the four walls of the jail are needed.’ i.e. we’re going to execute them.
And I think because we’ve changed tastes toward the death penalty, the only real argument is, people facing a life sentence are the ones that should be denied bail. Everybody else should have the opportunity to get out, in some way or another. Or, the community should be able to say, you know what Mr. Prosecutor, we are going to pull together the million dollars and he is getting out, because we don’t like you, and we think you’re full of it, and we think this guy is innocent, and we will make sure he gets there to challenge you and your office. And I think we need that. I think that is a libertarian value. I think that is an American value to say, you know what? We don’t sometimes trust the state and we do need a valve out. And I think bail represents that.
And to diminish that institution- as we have done- has proven to be problematic. And I think history is showing that right now. And it’s my job to continue pushing that, because I think we can have a less mass incarcerated America and still have a low crime America.
[00:30:42] Steven Grumbine: Yeah, I don’t disagree with that, at least that summation anyway. When you talk about a libertarian viewpoint and being skeptical of the state, I think we have seen a lot of opportunity to be skeptical of the state. And taking a political angle, we have the genocide in Gaza that is occurring on behalf of the American country, public money being blown and spent to not only fund, but arm Israel to the point where it’s obscene.
15,000 children are dead. Not terrorists, children. And when I think about what the US federal government is willing to put its money behind, it’s rarely in helping people out. So, as a former libertarian, and as someone who does subscribe to civil libertarian thinking, it is very hard for me to blame people for being skeptical and cynical and resentful towards any form of government at this point, because all they’ve had the opportunity to see in their real ‘don’t believe your lying eyes’ lives has been a corrupt government that has done no favors for anyone.
And once you get in that system, you are a mark. There is nothing. There is no career path. There is no renting an apartment. All the things you need to do to stay out of jail are blocked, because they allow them to discriminate against these folks. So, recidivism, what is the recidivism rate? It’s huge. It’s outrageous, is it not?
[00:32:32] Clayton: It is. And then here we go, we’re going to run a bill to fix Memphis, by increasing pretrial incarceration. We’re going to change the Tennessee Constitution. And yet, the federal government is going to spend money to go to the moon. And we’ve got kids joining gangs, shooting each other in Memphis. We’re going to spend all this money on Ukraine.
We’re going to spend another $14 billion here and there. How far would that money go towards solving this issue of the incidents and badges of slavery that continue, and the disparate impact of housing discrimination in this country. How far would that money go? And why do we allow the federal government to get away with that?
We’re going to go back to the moon. We need to go fix Memphis, Tennessee. We don’t need to go to the moon. It’s outrageous. And to hear people talking about that, you don’t care. You don’t care about these communities because you’d rather go to the moon than go to Memphis. So go to Memphis and fix it. Then you can go to the moon.
That’s my opinion.
[00:33:20] Grumbine: From a priority standpoint, and from a resource allocation standpoint, your priority should be exactly what you just said. The flip to that though- and this is where our podcast and the work our nonprofit does as well, kicks in- because the fundamental understanding of the way the government spends, we can walk and chew gum. We’ve just been told that we can’t.
And so, when you see them deny every possible value that any human being in this country could enjoy. Any kind of improvement in their life is treated as if ‘that’s free stuff, that’s bad.’ So we shut the door on any of these things that would make life better, that would make life good, that everybody would enjoy.
There’s none of that. But they will build bombs to destroy lives around the world. There’s no amount too great to do that.
[00:34:19] Clayton: Oh yeah, absolutely. The public would be against the socialistic roads that we drive our capitalistic cars on, if we really understood what was going on…
[00:34:28] Grumbine: Absolutely.
[00:34:30] Clayton: but that’s the way it is, we just label something, something, and we call it capitalist, then it’s good.
[00:34:35] Grumbine: It’s crazy. I’m really incensed by this, because as somebody who got to experience the prison system, the more things crack down, the more protest is made illegal in this country, the more homelessness is made illegal in this country, instead of making the conditions that create homelessness illegal, they make being homeless illegal.
They put spikes on park benches. They do things that make life unbearable for the average person. And then regular people, they don’t know all these deep things. You can’t ask them to get a PhD in sociology. They’re just not going to do it. So with that in mind, you got to understand that there’s competing interests here and there’s no one taking the time to understand what’s at stake.
And, I don’t know that there’s a way around that part. To create empathy in people and recognize that by creating the environment that creates the crime, you create an unsafe condition for the people over here that want to be tough on crime. And so they’re reacting to their lived experience. They’re fearful, but they’re not understanding that the person on the other side has already been through fearful and afraid and is now just trying to survive.
And so you’ve got this juxtaposition of two class interests competing with one another, when in reality, they’re the same class interest and the same goals, they’re just going about it, in my opinion, the wrong way. We need to help one side and the other side has a right to be safe from harm. What are your thoughts on that combined view?
I feel like any one of them by themselves is incomplete. You need the fullness of this. To fix the system. Otherwise you’re just putting a bandaid on a heart attack.
[00:36:21] Clayton: Yeah, I think that’s true. And the reality is people assume there’s a criminal class, but the percentage of everybody that actually gets out and goes back into society is very high in 95 percent of these people will be back, after they get out of prison. And they have to join a prison gang unfortunately, because we put all the bad people together and we tell them to get along, which is another great way to handle things.
The reality is I think we can do a better job of fixing people. I believe in American enterprise. I do believe in capitalism. And if we said the new probation policy is we’ll give a corporation $50, 000 to fix this person and keep them recidivism free, we might be getting somewhere. Maybe we could invest in something that would be evidence based and that would have results, which is, Hey, let’s see if we can get them in a job.
Let’s see if we put them in a residential drug treatment facility for three months that we could actually get them off drugs. I think there is an opportunity, but like you said, You’ve got to put your money where your mouth is. And we just don’t do that in this country. We spend more servicing the debt than we do spending on programs that are actually going to help people.
And I think that needs to be the fundamental shift. Look at all the welfare programs and spending, but it is the majority of the federal government spending, but I just don’t think it’s working. I don’t think it’s helping. I think we need to either change it or we just need another massive infusion of it, perhaps at the state level to really just give people the safety net they need to get them going in the right direction.
This is America. We can do better. That’s my view.
[00:37:39] Grumbine: The reaction to inflation has been to raise interest rates on debt to raise interest rates on borrowing, et cetera. Well, as someone who understands the monetary system, and that’s what our entire MO is here is teaching people about the actual function of the monetary system and how our misunderstanding of it has created these problems. By raising interest rates, what they have done is created the fertile ground for inflation by pumping money through the interest income channel to people who already have money. So, the way to stop inflation is to pay off the people that are raising prices through interest rate hikes and you’re creating a situation where on paper, the GDP looks like the economy is great.
But on reality, that’s an aggregate. If you take away the outliers and you remove the interest income channel, we’re actually looking at more recessionary pressures. We’re looking at people that are working two and three jobs because wages have not kept up. We’re looking at a horrible situation where the very nature of the way the system is creating this.
You said you’re a capitalist. I’m a socialist. And to me, my belief is that whatever priorities we think we need, the only issue is do we have the real resources for it? We can finance and fund anything because we create the money out of thin air via Article 1, Section 8 of your US constitution, and Article 1, Section 10 keeps the states from doing it.
So the Constitution itself tells us how to do this. But we ignore that because we’ve been convinced that the sale of a bond is somehow or another, this burdensome debt when reality is all that interest income is brand new money being spent to rich people that already have money. And this is how the wealth gap widens.
This is how you end up with the circumstances that we’re facing, at least from my vantage point. There’s a better way. And I wouldn’t call it a basic income because a basic income allows predatory corporations, because what is a corporation’s number one job? Maximize shareholder value.
[00:40:00] Clayton: Right, consumer spending.
[00:40:02] Grumbine: And so what are they going to do? They’re going to maximize shareholder value, and that means that labor is going to hurt. Anything that they can cut on a product to create that kind of planned obsolescence is going to happen. There’s all these negative externalities that without some sort of a regulatory body or the ability for people to vote with their wallets, since everybody doesn’t have an equal share of the pie, they can’t participate in that kind of protest strategy.
So it’s a system that has been built for and by wealthy white landowners. And they have not relented in that ownership class going back to the dawning of the nation. And I think it’s just a fair thing to say that we are a long way away from solutions, no matter which way you are. And my concern is very real.
They just went through this hardcore fight over moving the Washington Capitals and the Washington Wizards out of the nation’s capital into the richest part of Virginia, in Arlington. It got defeated, but the rationale for this move was because of crime. Once you remove the last little bit of economic support for that region, it’s going to be all hell breaking loose.
[00:41:19] Clayton: Well, I guess we need to go back to the Washington Bullets. Part of the excitement is you had to go in a bulletproof car down to the stadium. That’s part of the home field advantage. No, I agree with you. There’s a lot to be done. And certainly John D Rockefeller is doing a whole lot better than we do a lot better in this America than maybe you would have done before.
And that’s unfortunate, And there’s answers to that. On our issue, we just keep slugging away. I think we don’t need a pretrial mass incarcerated society and we can do better than we’re doing. And so I’m just going to keep working on that.
[00:41:45] Grumbine: Thank you so much. I really appreciate it. Tell folks where they can find more of your work.
[00:41:52] Clayton: ambailcoalition.org, also on Facebook and formerly Twitter, X.
[00:41:58] Grumbine: Awesome. I really want to thank my guest Jeff Clayton for coming in, being a good guy, listening to my rants as well. I really appreciate the dialogue. Hopefully we can talk again in the future.
[00:42:09] Clayton: Absolutely. It was a good time. Have a good day.
[00:42:11] Grumbine: Absolutely. This is Steve Grumbine with my guest Jeff Clayton with Macro ‘N Cheese. We are out of here.
[00:42:29] End Credits: Production, transcripts, graphics, sound engineering, extras, and show notes for Macro N Cheese are done by the fantastic team of volunteers at Real Progressives, serving in solidarity with the working class since 2015. To support our work, please go to patreon.com/realprogressives, realprogressives.substack.com, or realprogressives.org.
GUEST BIO
Jeffrey J. Clayton joined the American Bail Coalition as Policy Director in May, 2015. He has worked in various capacities as a public policy and government relations professional for fifteen years, and also as licensed attorney for the past twelve years, working most recently as the General Counsel for the Professional Bail Agents of Colorado, in addition to serving other clients in legal, legislative, and policy matters. Mr. Clayton also spent six years in Government service, representing the Colorado State Courts and Probation Department, the Colorado Department of Labor and Employment, and the United States Secretary of Transportation.
Our Team – American Bail Coalition (ambailcoalition.org)
Another podcast interview:
Bail and Bonds, A Levy on the Poor? Jeffrey J. Clayton (substack.com)
Twitter (X):
@ambailcoalition
Facebook:
American Bail Coalition | Lancaster PA | Facebook
PEOPLE MENTIONED
Thurgood Marshall (8:25)
Thoroughgood “Thurgood” Marshall (July 2, 1908 – January 24, 1993)
Civil rights lawyer who used the courts to fight Jim Crow and dismantle segregation in the U.S. Marshall was a towering figure who became the nation’s first Black United States Supreme Court Justice. He is best known for arguing the historic 1954 Brown v. Board of Education case, in which the Supreme Court declared “separate but equal” unconstitutional in public schools.
Congressman Danny Davis (23:54)
Danny K. Davis was chosen by the people of the 7th Congressional District of Illinois as their Representative in Congress on November 5, 1996. He has been re-elected by large majorities to succeeding Congresses.
Biography | Congressman Danny K. Davis (house.gov)
Caleb Foote (26:27)
In 1965, the civil rights advocate Caleb Foote foretold a “coming constitutional crisis in bail.” Foote was an extraordinary law professor whose research stemmed from the multiple prison terms he served for conscientiously objecting to the draft. To Foote, an opponent of Japanese internment in the 1940s and of wealth-based detention in the 1960s, the crisis in bail seemed clearly imminent.
The Yale Law Journal – Forum: The Present Crisis in American Bail
William Blackstone (29:46)
Sir William Blackstone (born July 10, 1723, London, England—died February 14, 1780, Wallingford, Oxfordshire) was an English jurist, whose Commentaries on the Laws of England, 4 vol. (1765–69), is the best-known description of the doctrines of English law.
Sir William Blackstone | English Jurist & Legal Scholar | Britannica
John D. Rockefeller (41:32)
John D. Rockefeller (July 8, 1839–May 23, 1937) was an astute businessman who became America’s first billionaire in 1916.
John D. Rockefeller, America’s First Billionaire (thoughtco.com)
INSTITUTIONS / ORGANIZATIONS
American Bail Coalition (1:32)
The American Bail Coalition is a trade association made up of national bail insurance companies who are responsible for underwriting criminal bail bonds throughout the United States of America. The Coalition also includes affiliate bail agent members from across the United States. The Coalition’s primary focus is to protect the constitutional right to bail by working with local and state policymakers to bring best practices to the system of release from custody pending trial.
Home – American Bail Coalition (ambailcoalition.org)
Pretrial Justice Institute (11:24)
PJI informs, inspires, and mobilizes local pretrial changemakers working to end mass incarceration.
Our Mission | Pretrial Justice Institute
ACLU (11:24)
In November 1919 and January 1920, in what notoriously became known as the “Palmer Raids,” Attorney General Mitchell Palmer began rounding up and deporting so-called radicals. Thousands of people were arrested without warrants and without regard to constitutional protections against unlawful search and seizure. Those arrested were brutally treated and held in horrible conditions. In the face of these egregious civil liberties abuses, a small group of people decided to take a stand, and thus was born the American Civil Liberties Union.
ACLU History | American Civil Liberties Union
From this episode (9:57-10:38):
“… if you really want to give people pretrial services, give them the services, give them the drug treatment, the economic opportunities, job training, and all the different things they need… but the main thing is going to be housing and jobs.’ Those are the two number one criminogenic factors- that every probation officer would tell me, over the five years- that people need.”
CONCEPTS
Pretrial Release (4:15)
The purposes of the pretrial release decision include providing due process to those accused of crime, maintaining the integrity of the judicial process by securing defendants for trial, and protecting victims, witnesses and the community from threat, danger or interference.
Pretrial Release (americanbar.org)
PR Bond {Personal Recognizance Bond} (4:15)
Simply put, OR release is no-cost bail. Defendants released on their own recognizance need only sign a written promise to appear in court as required. No bail has to be paid, either to the court or to a bail bond seller. However, all other aspects of bail remain the same.
How Do Judges Decide to Release You on Your Own Recognizance? | Nolo
Bail (4:52)
the temporary release of a prisoner in exchange for security given for the prisoner’s appearance at a later hearing.
Bail Definition & Meaning – Merriam-Webster
Rehabilitate (8:35)
“Time spent in prison can deter offenders from future crime or rehabilitate offenders by providing vocational training or wellness programs. However, incarceration can also lead to recidivism and unemployment due to human capital depreciation, exposure to hardened criminals, or societal and workplace stigma.”
The Benefits of Rehabilitative Incarceration | NBER
US versus Salerno (11:01)
The Bail Reform Act of 1984 (Act) requires courts to detain prior to trial arrestees charged with certain serious felonies if the Government demonstrates by clear and convincing evidence, after an adversary hearing, that no release conditions “will reasonably assure . . . the safety of any other person and the community.”
“…There may be times when the Government’s interest in protecting the safety of the community will justify the brief detention of a person who has not committed any crime…”
United States v. Salerno :: 481 U.S. 739 (1987) :: Justia US Supreme Court Center
Recidivism (15:17)
Recidivism is one of the most fundamental concepts in criminal justice. It refers to a person’s relapse into criminal behavior, often after the person receives sanctions or undergoes intervention for a previous crime.
Recidivism | National Institute of Justice (ojp.gov)
Sub Rosa Detention (18:37)
{sub rosa- Latin- happening or done in secret}
Taken from: In re Humphrey Court of Appeal, First District, Division 2, California Jan 25, 2018: “… by setting bail in an amount it was impossible for petitioner to pay, effectively constituted a sub rosa detention order lacking the due process protections constitutionally required to attend such an order. Petitioner is entitled to a new bail hearing at which the court inquires into and determines his ability to pay, considers nonmonetary alternatives to money bail, and, if it determines petitioner is unable to afford the amount of bail the court finds necessary, follows the procedures and makes the findings necessary for a valid order of detention In re Humphrey, 19 Cal.App.5th 1006, 1014 (Cal. Ct. App. 2018)
In re Humphrey, 19 Cal.App.5th 1006 | Casetext Search + Citator
Federal Job Guarantee (20:29)
The job guarantee is a federal government program to provide a good job to every person who wants one. The government becoming, in effect, the Employer of Last Resort.
The job guarantee is a long-pursued goal of the American progressive tradition. In the 1940s, labor unions in the Congress of Industrial Organizations (CIO) demanded a job guarantee and Franklin D. Roosevelt supported the right to a job in his never realized “Second Bill of Rights”. Later, the 1963 March on Washington demanded a jobs guarantee alongside civil rights, understanding that economic justice was a core component of the fight for racial justice.
https://www.sunrisemovement.org/theory-of-change/what-is-a-federal-jobs-guarantee/
https://www.currentaffairs.org/2021/05/pavlina-tcherneva-on-mmt-and-the-jobs-guarantee
13th Amendment (20:41)
(1865) the Constitution of the United States that formally abolished slavery. Although the words slavery and slave are never mentioned in the Constitution, the Thirteenth Amendment abrogated those sections of the Constitution which had tacitly codified the “peculiar institution”.
Thirteenth Amendment | Definition, Significance, & Facts | Britannica
Vagrancy Laws (20:43)
Vagrancy, state or action of one who has no established home and drifts from place to place without visible or lawful means of support. Traditionally a vagrant was thought to be one who was able to work for his maintenance but preferred instead to live idly, often as a beggar.
Risk Algorithm (28:47)
In recent decades, risk prediction has proliferated in the penal realm. Risk instruments currently guide an array of correctional decisions – such as participation in diversion programs, the provision of correctional services, and probation and parole supervision levels – and are being increasingly utilized or considered in pretrial detention
Algorithms in the Criminal Justice System: Assessing the Use of Risk Assessments in Sentencing
use of these risk assessment tools: their incorporation into the criminal sen1 Ethan Chiel, Secret Algorithms That Predict Future Criminals Get a Thumbs Up From Wisconsin Supreme Court, Fusion (July 27, 2016), http://fusion.net/ story/330672/algorithms-recidivism-loomis-wisconsin-court/. 2 Julia Angwin et al., Machine Bias: There’s Software Used Across the Country to Predict Future Criminals. And It’s Biased Against Blacks., ProPublica (May 23, 2016), https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing. tencing process, a development which raises fundamental legal and ethical questions about fairness, accountability, and transparency.
2017-07_responsivecommunities_2.pdf (harvard.edu)
Basic Income (24:21)
Steve Grumbine – UBI (Universal Basic Income) vs FJG (Federal Job Guarantee) – YouTube
Housing Projects (24:59)
Public housing in the United States is administered by federal, state and local agencies to provide assistance for low-income households. Public housing is priced well below the market rate. It is provided in various settings and formats.
Originally public housing in the U.S. consisted primarily of one or more concentrated blocks of low-rise and/or high-rise apartment buildings. These complexes are operated by state and local housing authorities which are authorized and funded by the United States Department of Housing and Urban Development. More than 1.2 million households currently live in public housing of some kind.
Short History of Public Housing in the US (1930’s – Present) | HomesNow!
Preventive Detention (27:08)
Preventive detention, the practice of incarcerating accused individuals before trial on the assumption that their release would not be in the best interest of society—specifically, that they would be likely to commit additional crimes if they were released. Preventive detention is also used when the release of the accused is felt to be detrimental to the state’s ability to carry out its investigation.
In 1984 the U.S. Congress adopted a preventive detention act allowing federal courts to detain arrestees pending trial if the government could show that no release conditions could protect the safety of persons and the community. The act was challenged before the U.S. Supreme Court in United States v. Salerno, decided in 1987.
Preventive detention | Definition, Pros & Cons | Britannica
Bond (39:28)
1.a signed promise to pay an amount to do something on a date. Documents like contracts and loan agreements are bonds.
2.a contract with three parties. One party gives guaranty to a customer that a contractor will perform the actions agreed to.
BOND Definition & Meaning – Black’s Law Dictionary (thelawdictionary.org)
Planned Obsolescence (40:13)
“creative waste”—the idea that throwing things away and buying new ones could fuel a strong economy. Its authors, Roy Sheldon and Egmont Arens, identified the desire for ever-more-modern consumer goods as something unique to America, with its “enormous natural resources.”
The Birth of Planned Obsolescence – JSTOR Daily
Negative Externalities (40:17)
Negative externality, in economics, the imposition of a cost on a party as an indirect effect of the actions of another party. Negative externalities arise when one party, such as a business, makes another party worse off, yet does not bear the costs from doing so.
Negative externality | Definition, Economics, Examples, & Facts | Britannica