There are only two countries on the planet that currently jail people for being too poor to pay the government for getting arrested: The United States and the Philippines. That’s right. Two. As Slate’s Leon Neyfakh explained last year, there is currently a crusade underway in this country to end the practice of caging poor people who have been arrested for misdemeanors and traffic violations unless they can come up with sums ranging from $300 to $500. One prominent civil rights attorney in Washington, D.C., Alec Karakatsanis, has been filing suits across the United States arguing that this practice is unconstitutional.
As these cases work their way through the system, though, even more is being done. Jason Flom is the CEO of Lava Records, credited with discovering Katy Perry, Lorde, and Kid Rock, among others. He is also a founding board member of the Innocence Project, which uses DNA testing to exonerate those who have been wrongly convicted. Among his newest justice-reform projects, one stands out as eminently achievable: Flom wants to get rid of cash bail. Boom.
In any given year, city and county jails across this country lock up between 11 and 13 million people just because they aren’t rich enough to write a check for a few hundred dollars. Flom is convinced that every city in the United States should follow the lead of Washington D.C., which has done away with cash bail. I spoke with Flom to find out what this new crusade is all about, why one of the country’s leading record moguls is obsessing over it, and why America has one criminal justice system for the rich and another for the poor. The interview has been edited for length and clarity.
Dahlia Lithwick: I think one of the reasons it’s hard for most Americans to wrap their heads around this issue, is that it seems so universal. We have just come to believe that every country in the world makes you pay money to guarantee that you will show up in court. Bail bondsmen are like the guys who bag groceries. But as we know, it’s actually a crazy outlier of a system and only two countries use it. In Canada, acting as a bail bondsman can earn you two years in prison. So what do other countries do? What do they do in Washington D.C., where there is no cash bail? How did this insane system even come into being? Were colonial jailers somehow as greedy as today’s prison/bail industrial complex?
Jason Flom: The majority of people I’ve spoken to seem to be in a state of denial about this. It’s been a twisted reality of our justice system for so long, that even many reformers seemed to have looked past it, while focusing on other aspects of mass incarceration. What’s strange is that the original intention of the bail system was to set people free while they awaited their court date. There was a New York Times piece that captures the strangeness of the evolution of a British system created to emancipate people. The 1689 English Bill of Rights, which expressly outlawed the widespread practice of keeping defendants locked up by setting purposefully unaffordable bail, [declared] that ‘‘excessive bail shall not be required, nor excessive fines imposed.’’ That same language was important enough to put into the Eighth Amendment to the United States Constitution.
Didn’t Bobby Kennedy pledge to end the cash bail system decades ago? Don’t the American public wildly support this? Why does this system persist?
RFK spoke eloquently and powerfully on this subject in 1964. What he said then should haunt us today: “Usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is, simply, money.” My understanding is that he fully expected that the states would follow suit [if the federal government acted].
President Lyndon Johnson signed the Bail Reform Act in 1964, and when he did, I believe he also expected that the states would fall in line. It’s a tragedy that this never came to pass and that tens of millions of American lives have been ruined as a result.
Right now it looks like all the really interesting reform is happening by way of nine class-action lawsuits filed by the group Equal Justice Under Law in seven states. Is this something that could benefit from legislative action as well? Nebraska seems to be doing away with its crummy civil forfeiture regime in the statehouse this week. Who do we talk to if we want to get states to end cash bail, which is just as much a system of bilking the very poor, as civil forfeiture laws?
Civil forfeiture laws are so bizarre that every time I hear about them, I think I must be reading a spoof or a parody. It’s the working definition of insanity that in America today the police can confiscate your cash, your car, even your house—for their own gain—just because you may have been involved in illegal activities. The good news is that Florida recently overturned their civil forfeiture law by way of a unanimous vote. My hope is that other states will now take similar action.
You are absolutely right that cash bail is a tax on the poor. And it doesn’t stop when they leave the jail because in many cases they are hit with court costs, processing fees, etc., which put them in a downward spiral of debt they can’t pay and suddenly they find that there are warrants for their arrests, simply because they couldn’t pay to be in jail for an alleged transgression. They cycle in and out of jail, and there are other hidden consequences—which may include loss of their drivers’ licenses, their jobs, even custody of their children. This process also has a terrible impact on their future employment possibilities, which can thrust families further into poverty.
The short answer to your question is that some state legislatures are in fact trying to reform the cash bail system. Connecticut, for instance, where the right and the left are aligned against the bail-bond industrial complex. So this is something you may be able to get your legislators to act on by calling your state representatives.
People were really mad last summer about the death of Sandra Bland, who killed herself while detained in a Texas jail when she couldn’t make $500 bail for a trivial infraction. Rightfully so, right? Poor people who are held in jail because they don’t have enough cash to write a fat check on the spot are more likely to kill themselves; to take bad plea deals; to be convicted later at trial; and to reoffend. So what is one thing readers can do right now, that would help change a system that seems to benefit nobody and to cruelly punish the poor.
I’m furious about Sandra Bland. She was someone who sought to make the world a better place and was only a few hundred yards from a university where she had accepted a job as a professor, when she was wrongfully arrested, and then everything went downhill from there. The result was a tragic loss of a beautiful soul. People need to understand that while the word jail may sound more benign than the word prison, jails are overcrowded and violent, and they are incubators of disease. Many people find themselves losing hope while they are there. One exoneree—who served two years in jail awaiting trial and then eight years in a maximum-security prison after he was wrongfully convicted—told me that jail was even worse than prison. He said that in his two years there, he was only allowed outdoors twice. The action steps I’d recommend to combat this problem are social media activism, writing letters to your legislators, and contributing money to the people doing the heavy lifting like Equal Justice Under Law and Arch City Defenders in St. Louis. [Update, April 22, 2016: The Bronx Defenders also do work like this.]
I feel oddly compelled to ask you this question. You are free to not answer: Your whole life is about spotting talent in random places, and turning people into rock stars. But all of your compulsive extracurriculars seem to involve finding incredibly unlucky, often poor people, and helping them get out of jail. Weird much?
My job is finding talented artists and helping them achieve their maximum potential. But my calling in life—the thing that gives me purpose—is helping the people who find themselves in impossible situations through no fault of their own. I learned from my father, Joe Flom, that the meaning of success lies in making the world a better place, and I feel lucky to have found a cause that angers, inspires, and motivates me to the point of obsession.