While the underlying logic of the cash bail system in the US may sound convincing on paper, in practice it has become a means of denying justice to, and destroying the lives of, people who have not even been convicted of a crime. “The US Constitution prohibits ‘excessive bail’” The Bail Project notes on their website. “Excessive bail forces people to stay in jail—even though they’ve not been convicted of anything. Unfortunately, today judges routinely set bail amounts that exceed what most people can afford. The result? Jails are full of people waiting for trial. They are presumed innocent on paper, but in practice, they are being held for weeks, months, and sometimes years as they wait for trial.” David Gaspar, CEO of The Bail Project, joins Mansa Musa on Rattling the Bars to talk about how cash bail creates a two-tier system of justice that punishes people for the “crime” of being poor—and what we can do about it.
David Gaspar is the Chief Executive Officer of The Bail Project, a nonprofit organization that provides free bail assistance to those in need and advocates for better, more humane pretrial policies. A formerly incarcerated individual directly affected by the cash bail system, Mr. Gaspar earned his GED and bachelor’s degree and studied law while in prison, won his appeal, and was released 11 years early.
Studio Production: David Hebden
Post-Production: Cameron Granadino
Mansa Musa: Welcome to this edition of Rattling the Bars. I’m Mansa Musa. In this country, he’s innocent or she’s innocent until proven guilty. In this society and our judicial system, this right very rarely gets acknowledged. Mainly when you get arrested and you can’t afford to get out because of excessive bail. An excessive bail might be in the form of the person’s inability to pay the bail. The bail might not be excessive for Donald Trump, the bail might not be excessive for Bernie Madoff, but the bail for the average person would be excessive. Here to talk about cash bail and all things relative to bail reform is David Gaspar of The Bail Project. Welcome, David.
David Gaspar: All right. Thank you for having me.
Mansa Musa: Tell our audience a little bit about yourself.
David Gaspar: I’m currently the CEO of The Bail Project. It’s a national not-for-profit that pays the cash bail on behalf of individuals in a position of need. I am somebody who has been system-impacted. At the age of 22 years old, I got sentenced to 21 years in prison. In large part, I received that sentence as a plea bargain, not understanding what my rights were, not being able to afford bail, and feeling the pressures of the system weighing down on myself as well as my family.
I ended up going to prison and getting my education. I wrote and filed my own appeal and ended up giving the state back 11 years of the 21-year sentence they gave me. But what was most surprising and hurtful to me was that when I went back for resentencing, my lawyer at that time said I had already done five years more than I should have ever done. And when I think about that and about the impact bail had on my life, and my inability to advocate for my innocence or a just sentence, it empowered me and put a fire inside of me that made me want to be part of this work now.
Mansa Musa: Well, tell us about The Bail Project. Give us an overview of what The Bail Project is and how it operates before we go into some of the aspects of cash bail.
David Gaspar: Yeah. The starting point is somebody finding themselves in the situation of needing assistance with bail. So this is somebody who is sitting in county jail and has not yet been convicted of anything. The only thing preventing them from actually having the freedom of being reunited with their family, as well as their ability to continue living their life, is the fact that they don’t have enough money in their pocket or enough money in their bank account.
And so a loved one on their behalf – Could be a wife, partner, could be a child – Will reach out to us and they’ll say, hey, we have a loved one that is currently sitting in jail and could require your help. And then we’ll reach out to the individual. We’ll schedule what we call an interview, but it’s our opportunity to talk to them directly. And if we feel like we have the opportunity and the ability to be able to support them post release, then we’ll go ahead and post their bond and then support them and return them to court successfully.
Mansa Musa: I opened up earlier talking about how in this country, everybody has a right to bail and to not be given an excessive bail. Talk about how this cash bail draconian system got to where it’s at right now in terms of creating a roadblock for people being able to get out for no reason other than not having the ability to pay 10%. I was in the county jail, and I recall a guy came in there, and he had a $1,000 bail, and he couldn’t pay the 10%. So what he did was wound up staying in the detention center for a year, and when he went back, the judge gave him time served. Talk about that.
David Gaspar: So when we’re talking about bail, it’s important to ground that. This is what we see in the Constitution of the US. The protection against excessive bail is the language, but we also have the right to due process, the right to be able to face our accusers, and the right to a speedy trial. And all of these rights, these principles that we stand on as a nation, they look and sound great on paper. It’s when we get to practice that we see this breakdown and what we see on TV also misinforms the public aspect. ‘Cause on TV it’s more aligned with what we see on paper. It’s a script for a narrative for a television show versus the reality that we live in.
And so what The Bail Project’s work is, is first proving that money is the actual driver that brings people back to court. And we’ve been able to do that successfully. 92% of the people that we bail out return to court. So they’re coming back, they don’t have any money in the game, they have no personal interest other than wanting to put this to rest, put closure to it, and be able to move forward in life. And there was an article that came out last year that said more than half of our American population doesn’t even have $500 in their bank account for an emergency. So when you stop and think about how they don’t even have $500 for an emergency, now you’re going to give them a $10,000 bond. You’re going to give them a $15,000 bond. Even if it was a $500 bond, what you’re doing is depleting that household of any means that they have to respond to an emergency.
But that’s for the bond itself. What about the days that they lost at work, what about the potential of them losing their job? What about the potential of them losing their children, their housing, and the ability to make their next car payment? When you hold somebody in jail each and every passing day, you are harming that individual and the family unit they’re part of. And so when we talk about the harms, when we talk about the need that’s there, protecting ourselves against excessive bail is to keep our family units intact, to keep our communities whole, and to allow our actual nation to succeed. When we start to tear that apart, what ends up happening is we cannibalize our communities, those who are the backbone, the Constitution, the preamble, “We the People –”
Well, which people are we talking about? Those with money that benefit from these systems or those without that are harmed by them? And so at the end of the day what we’re trying to do is level that playing field. We’re trying to make money not be the issue that’s standing between somebody and their freedom and allowing them to go home, keep their life as intact as possible, and support them with court reminders and transportation assistance so that they can successfully return to court and put closure to that bad moment of their life.
Mansa Musa: And you made a good observation earlier about the assumption of innocence, and then inherent in that right is the presumption that you have a right to a speedy trial. You have a right to confront your accuser. Now, if all things are perfect – And we know in Law and Order all things are perfect on TV – We know on every TV show where it’s the law and some kind of disorder, then we know that it’s a perfect scenario. But in the real world, we know it’s not. And the fact that a person has a right to a speedy trial when they’re first arrested, they’re offered this right.
Okay, I want a speedy trial. Okay, now you’re not going to give me a bond. Okay, you’re not going to give me a bond and you’re not going to give me a speedy trial. And then what you’re going to do is you’re going to give me a public defender ’cause I can’t afford to get a bond, I can’t afford an attorney. You give me a public defender and now my speedy trial is getting waived because it’s being postponed because they can’t find my accuser. Or they’re playing the waiting game until they get me to a point where I can’t get bail, I can’t get a speedy trial. The only thing I can get is the offer they put on the table. And that’s the plea bargain. And this is premeditated on the part of the state?
David Gaspar: I personally can’t go as far as to say that’s premeditated. What I can say is that we have a system that has been operating like this for decades. So it’s not unknown to people. It’s not one of those things where, wow, I wish I would’ve known that so I could have done something about it. We know this is how it works, we know this is how it moves. And going to the rights you were naming: being able to stand in a courtroom for your bail hearing and have an opportunity to make your case isn’t even afforded to everybody upon incarceration.
You walk in there and sometimes it’s already predetermined and you’re hearing the outcome for the first time. And what we want to do as The Bail Project is create a bail hearing where the defense has an opportunity to put forth their case, the state has the opportunity to put forth its case and there is a weighed decision point that the judge makes on record that can be evaluated. That’s what we all believe is happening anyway, so why are we not moving in that direction? But to get back to your question, if we know it’s not working for the people and we understand that there’s significant harm that’s being caused by it, there is a valid question that should be asked, and that’s why do we allow it to persist?
Mansa Musa: That’s right, that’s right. And, let’s flesh that out about that process, ’cause what you said, that’s the law. This is not a theory, this is supposed to be what takes place. The purpose of a bail hearing is to determine whether or not the person should be released on bail. Now, inherent in that concept – And you can weigh in on this when you want – Inherent in that concept is, the state put on evidence and information as to why bail should not be granted. That’s when there’s no bail. Or, why an excessive bail should be granted or why the state is not opposing being released on recon. The defendant is allowed to present information as to, one, why they’re a good candidate to be released on a low bail, and two, the damage that’s going to be done if they remain in this environment. All of these factors are supposed to be taken into account, am I correct?
David Gaspar: Yes. Yeah, you are.
Mansa Musa: Then the question becomes, why is this going on? And David, I wanted you to flesh this out because we’re not talking about, when we say over 2,000 people in the detention center in Cook County in Chicago, we’re not talking about 2,000 people that have a capital offense. We’re not talking about 2,000 people that are a flight risk. We’re not talking about 2,000 people that are recidivated. We’re talking about people that got caught in a situation that ultimately might result in their innocence, might result in exoneration. But in between then and there, they’re not given the opportunity to get the courts, going back to what you say, being back inside. Why is this, why are we allowing it to exist?
David Gaspar: Yeah, it’s a great question. I’ll try to unpack that a little bit, but I’ll go back to your point. We have over half a million people in our jails across the nation, and more than half of them are there without a conviction. So they’re there for the reasons that you said; they simply can’t afford the money. But what’s important for people to understand as well is that those three areas: being held without bond, being released with bond, and being released without bond, are the three options that a judge has in front of them. But two of them are release, so even though the bond is the triggering factor, the judge has determined that this person is safe to go back into society; this person is, to what they have in front of them, not going to cause any harm. That’s the judge’s decision that they’ve made.
Now, when we talk about the money, why does money need to be the factor when the money disproportionately impacts those within a poverty level? We know that people of color are the most impacted by these decisions, so why do we allow that persistence in that way? And a lot of it goes back to what is easy. When we think about human nature, change is difficult for people. So if we’ve already got a process in place, unless we find an easier way to get people to engage, they’re going to stand their ground on where they are. But there’s something else that we already know: bonds, and bail in general, are about money.
And so we have to ask ourselves, who’s benefiting, who’s profiting at the end of the day? And we can say there’s a whole magnitude or multitude of individuals that benefit from this. But what cannot be lost at any given point in time is that we’re not talking about a few million dollars here and there. We’re talking multibillion-dollar profits being made from keeping people incarcerated pretrial. Once again, people that have not been convicted of anything, people that the judge has determined that, if they’ve got the money, they’re perfectly fine to go back into society.
So we’re not talking about releasing dangerous people. The judge has it within their discretion, if they deem somebody to be dangerous, a threat to the community, they can hold them without bail. They can keep them. The decision point is why is the money still a factor if you’ve already determined this person is eligible for release as long as they’ve got the right amount of money in their pocket? Now we have to ask, well who’s benefiting from this? Who’s potentially profiting from that decision?
Mansa Musa: And on that point, as we wrap up, we know that the prison-industrial complex, mass incarceration, which is a new form of slavery, is profitable. So all hands are on deck when it comes to fueling it, we know the county jails have the fuel. In the few minutes that we’ve got left, let’s talk about bail reform. Where are we in terms of our national movement for bail reform? ‘Cause I’ve been in some spaces where they have made some astronomical progress in certain states, in certain cities. Where are we in terms of having a national movement for bail reform? Because as you said, the effect that it has is people lose their jobs, people lose their houses, people lose their medical, people lose their lives. So where are we in terms of bail reform?
David Gaspar: Yeah, great question. First I’ll start with, you mentioned the prison-industrial complex. Pretrial jail populations being where they are and the impact you named earlier, how people had taken plea bargains to put an end to it, to be able to move forward, is one of the leading factors to the prison population as we see it today. So it’s one of the leading drivers. If we could fix that on the front end, we wouldn’t see all this on the back end. With that said, where’s bail reform?
During these more recent election cycles, we saw the phrase “bail reform” being weaponized. And it confused people as to, what does that mean? What is bail reform and how does that impact me? And we saw them make a close association to the violence, all of the rise in violence that’s happening throughout our nation. And there’s no empirical evidence to say that there is a correlation between bail reform and not. As you said, there are few places that have put forth any meaningful bail reform. But we see the violence that people are pointing to happening in areas where bail reform has not even been part of the conversation, part of the change that could have even potentially contributed to that. So there’s a lot of work that needs to be done to dispel the misinformation that was spread during that period.
Now, what is bail reform and where are we today? Bail reform is about answering the question, is it necessary? Does it serve a purpose in our society today? And we’ve been able to prove that it has no place. Money is not what’s bringing people back to court. Money is not what’s preventing people from being a flight risk. What money’s doing is keeping people incarcerated unnecessarily and causing additional harm to their life. That, we have been able to prove. What taking the umbrella of bail reform has also done is stopped us from talking about specific issues that have led to our jail populations growing: mental health and substance mistreatment. These are things that have been diagnosed as actual medical conditions.
Why are we treating them with a cell? Why are we locking people in a concrete box and telling them their mental health needs to get better on its own for them to be successful, instead of giving them medical attention? Why are we saying that locking you in this box, and the abstinence, or us keeping you away from whatever your addiction is, is going to make you better? Let’s treat those the way that they need to be treated. And first and foremost, let’s treat them with respect by allowing them space and conversation and not bunching them underneath the bail reform umbrella. Then we could talk about homelessness, poverty. These are conditions that people live with. These aren’t choices. Somebody didn’t wake up this morning and say, I feel like I’m going to be broke today. Let’s look at what their opportunities are and how we can support them in being successful in landing, not a job, but a meaningful job that’s going to uplift them and their family unit.
Let’s take somebody who’s homeless and figure out how we get them the help they need so they’re no longer on the streets and in need of assistance. And then once again, let’s give those individuals that have mental health and substance abuse challenges the medical attention they deserve. Then we can start to talk about, well hold up, we’ve already released half the jail population anyways by addressing the underlying causes that led somebody to that potential interaction with law enforcement. And if we can even solve those, we can have a much more honest conversation about what bail reform means.
Mansa Musa: Thank you, man. Look, there you have it, The Real News. We are criminalizing poverty. It’s poverty that’s being criminalized and not criminal activity as we know it. And we ask that our listeners and our viewers take note of this. We’re not talking about bail reform – We’re talking about reforming a society that penalizes and criminalizes poverty. And if they change the poverty paradigm, then we won’t have to be having a conversation about the money ’cause we already know it’s not the money that’s the cause of people not coming back to court. It’s not the money that causes people to remain in prison; it’s poverty and poverty alone. Thank you, David. We appreciate you coming on. How can we get in touch with you? How can our viewers and listeners get in touch with you?
David Gaspar: So you can go to bailproject.org. That is our website, and you can reach out to us today.
Mansa Musa: All right. And we remind our listeners and our viewers to continue to support Rattling the Bars and The Real News. You only get this kind of information from Rattling the Bars on The Real News. You’re not going to get a David on NBC or CBS or Fox News. You’re not going to get a David talking about poverty and how poverty is being used, is being criminalized. You’re not going to get this anywhere but here. And we ask that you continue to support this network and continue to support Rattling the Bars. Thank you very much, David.
David Gaspar: Thank you so much. Appreciate it.