WEBVTT

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Since 2000, the annual number of people
convicted of crimes in the United States

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has stayed steady, but the average number
of people in jail each year has shot up.

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How can that be?

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The answer lies in the bail system—

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which isn’t doing 
what it was intended to do.

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The term "bail" refers to the release
of people awaiting trial

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on condition that they return 
to court to face charges.

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Countries around the world 
use many variations of bail,

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and some don’t use it at all.

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The U.S. bail system relies primarily 
on what’s called cash bail,

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which was supposed to work like this:

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When a person was accused of a crime,

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the judge would set 
a reasonable price for bail.

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The accused would pay this fee 
in order to be released from jail

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until the court reached 
a verdict on the case.

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Once the case ended, 
whether found guilty or innocent,

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they’d get the bail money back 
if they made all their court appearances.

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The rationale behind this system 
is that under U.S. law,

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people are presumed innocent
until proven guilty—

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so someone accused of a crime 
should not be imprisoned

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unless they’ve been convicted of a crime.

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But today, the bail system in the U.S.

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doesn’t honor the presumption
of innocence.

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Instead, it subverts peoples’ rights
and causes serious harm,

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particularly to people 
in low-income communities

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and communities of color.

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A key reason why is the cost of bail.

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In order for cash bail 
to work as intended,

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the price has to be affordable
for the accused.

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The cost of bail wasn’t meant to reflect
the likelihood of someone’s guilt—

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when bail is set, the court 
has not reviewed evidence.

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Under exceptional circumstances, 
such as charges of very serious crimes,

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judges could deny bail 
and jail the accused before their trial.

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Judges were supposed to exercise 
this power very rarely,

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and could come under scrutiny
for using it too often.

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Setting unaffordably high bail 
became a second path

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to denying people pretrial release.

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Judges' personal discretion 
and prejudices played a huge role

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in who they chose to detain this way.

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Bail amounts climbed higher and higher, 
and more and more defendants couldn’t pay—

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so they stayed in jail.

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By the late 19th century,

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these circumstances led to the rise 
of commercial bail bond companies.

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They pay a defendant’s bail, in exchange
for a hefty fee the company keeps.

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Today, the median bail is $10,000—

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a prohibitively high price 
for almost half of Americans,

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and as many as nine out of ten defendants.

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If the defendant can’t pay,

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they may apply for a loan 
from a commercial bail bond company.

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It’s completely up to the company 
to decide whose bail they’ll pay.

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They choose defendants they think 
will pay them back,

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turning a profit of about
$2 billion each year.

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In fact, in the past 20 years,

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pretrial detention has been the main
driver of jail growth in America.

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Every year, hundreds of thousands 
of people

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who can’t afford bail or secure a loan
stay in jail until their case is resolved.

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This injustice disproportionately affects
Americans who are Black and Latino,

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for whom judges often set higher bail

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than for white people accused
of the same offenses.

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Unaffordable bail puts even innocent
defendants in an impossible position.

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Some end up pleading guilty to crimes 
they did not commit.

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For minor offenses, the prosecution 
may offer a deal that credits time

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already spent in jail toward 
the accused’s sentence

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if they plead guilty.

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Often, the time they’ve already spent in
jail is the total length of the sentence,

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and they can go home immediately—
but they leave with a criminal record.

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Defending their innocence, meanwhile,

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can mean staying in jail indefinitely
awaiting trial—

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and doesn’t guarantee 
an innocent verdict.

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Bail may not even be necessary
in the first place.

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Washington, D.C. largely abolished
cash bail in the 1990s.

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In 2017, the city released 94% 
of defendants without holding bail money,

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and 88% of them returned
to all their court dates.

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The nonprofit organization, 
The Bail Project,

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provides free bail assistance to thousands
of low-income people every year,

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removing the financial incentive
that bail is designed to create.

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The result? People come back 
to 90% of their court dates

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without having any money on the line,

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and those who miss their court dates 
tended to

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because of circumstances like child care,
work conflicts, or medical crises.

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Studies have also found that holding
people in jail before trial,

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often because they cannot
afford cash bail,

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actually increases the likelihood
of rearrests and reoffending.

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The damage of incarcerating people 
before their trials

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extends to entire communities
and can harm families for generations.

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People who are incarcerated 
can lose their livelihoods, homes,

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and access to essential services—

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all before they’ve been convicted 
of a crime.

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It’s also incredibly expensive:

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American taxpayers spend 
nearly $14 billion every year

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incarcerating people 
who are legally presumed innocent.

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This undermines the promise 
of equal justice under the law,

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regardless of race or wealth.

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The issues surrounding cash bail 
are symptomatic of societal problems,

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like structural racism and over-reliance
on incarceration,

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that need to be addressed.

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In the meantime, 
reformers like The Bail Project

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are working to help people trapped 
by cash bail

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and to create a more just and humane
pretrial system for the future.