Phil King Gives Us His Opinion On The Issue of Bail – Is Excessive Bail Being Required?: Bail is an issue of liberty. In 2016, 76% of people who were in jail were not convicted of a crime and they could not make bail. Of those, 68 % of them were convicted of nonviolent crimes. What happens when someone in your family gets arrested? How easy is it for them to get out of jail before they are convicted of anything? Stay tuned to find out more!

Air Date: 01/06/2020

Guest:Phil King

On-air Personalities: David Barton, Rick Green, and Tim Barton


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Transcription note:  As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

Faith And The Culture

Rick:

My name is Rick Green. I’m a former Texas legislator and America’s constitution coach. I’m here with America’s premier historian, that’s as David Barton and Tim Barton with this national speaker and pastor and president of WallBuilders.

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State Representative Phil King Is Going To Be With Us Talking About Bail

Okay. State Representative Phil King is going to be with us a little later in the program. We’re talking about bail.

Now, some people at home, they say, I’m not interested, it’s no big deal. But the issue is it’s a Liberty issue and it’s what happens if someone in your family does get arrested and the bail system and the money bail system and how difficult is it for them to be able to get out of jail before they’re actually convicted of anything.

So we had an interesting question from an audience member and Phil King will be on to help us with it a little later in the program. And here’s what they said.

They said 76% of people in jails in 2016 were not convicted of a crime. They simply couldn’t make bail. Of those people, 68% were accused of nonviolent crimes. It is no secret that an accused level of wealth is the determining factor in whether or not they will be able to pay bail.

Is Excessive Bail Being Required?

Do you think that the fact that there’s such a large number of people being detained pretrial indicates that excessive bail is being required? Of course, excessive bail in quotes referring to, you know, a constitutional ban on that sort of thing. So are we requiring too much and this study comes from prisonpolicy.org.

And I think guys, let’s not give a misperception of the numbers. Say 76% of the people in jails not convicted of a crime means they haven’t convicted of a crime yet. So they are pretrial before actually going on trial.

Excessive Bail Is In The Eighth Amendment Of  The Constitution

Tim:

And I understand this, so thank you. Happy to go back to the historical underpinnings. This is something that, that clause, excessive bail is in the eighth amendment of the constitution, part of the due process rights.

Just like you get the right to have an attorney, you get to right to trial by jury, you get a right to confront your accusers, etc. This is one of those due process rights. And it really goes back into England and English practice and an England where you have Kings and monarchs and you had little tyrants, I guess is the best way to say it.

The Historical Underpinnings

You know, whoever was over the local community, I may not be the King, but I’m King over this community and I have my castle and whatever. And so you could have a local sheriff that didn’t like you. Rick, I just don’t like you. I’m the sheriff. I saw you jaywalking, I’m going to throw you in the local jail and you can get out when you pay a $43 million bail.

So what I’ve done is essentially imprisoned you for the rest of your life over some petty offense. And that was going on so commonly in England, that back in the early 1600s, the parliament came up and said, no, you can’t do that.

You got to have reasonable bails. And they didn’t really define it, but they did define what was a bailable and a non-bail offense and said, okay, let’s get the Sheriff’s out of this. Their personal pain is going to be gone.

There were still some abuses. And so the English bill of rights, the glorious revolution, 1688 and 1689 with Oliver Cromwell, this is where so much broke the back of the morning at that time. And they started having individual rights.

That’s where they literally as part of the glorious revolution, put in this requirement that, and here’s their phrase, “Excessive bell ought not to be required”. So you need to have a bail that’s commensurate with the offense. If it’s a serious crime, it’s going to be higher bail. If it’s a non-serious crimes, lower bail. But we’re going to have something here to make sure that you come back for fear of losing your money.

You Need To Have A Bail That’s Commensurate With The Offense

If you’ve committed a murder and the bail is $1, I don’t expect you’ll ever show up again at the court in front of the judge. But if I make the bail $1 million, then you’re going to come back because you want your million dollars back, you’re going to be here for the trial. And so that’s generally the way that bail works.

It’s enough to make sure that you show up again without forfeit in that money because that’s too much money for you to walk away from. So that’s generally the philosophy behind it. So now, the study you’ve got and the question you’ve been asked, we know state representative Phil King, who was a number of years in Fort Worth Police Department who is a captain in the police department. He deals with these kinds of issues in the state legislature in Texas. We thought he’d be a great guy to ask about this because this is some of the stuff that he’s dealt with throughout his career.

Front Sight Firearms Training Institute

Rick:

Phil King, our special guest, he’s a state representative from the great state of Texas. Stay with us. You’re listening to WildBuilders Live.

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Rick:

Welcome back to the intersection of faith and the culture. Thanks for staying with us here on WallBuilders Live. Our good friend, representative, Phil King from the great state of Texas is back with us. Phil, thanks for joining us again.

Phil:

Oh, great to be here.

Phil King Joins Us

Rick:

Hey, so you obviously as President of Alec National Association of Legislators from across the country and 20 years in the Texas legislature have dealt with virtually every issue.

But I also know criminal justice reform is a hard issue for you. It’s something that you’ve, you know, spent a lot of time thinking about, working on studying and looking at how to come to biblical ways to do this. So David thought you’d be perfect to get on about this question we got from a listener. Thanks for coming on and talk about this particular subject too.

Phil:

Well, it’s a great question and I spent 15 years as a Fort Worth Police Officer too, so it’s kind of important in my life.

Rick:

Yeah. Well, this, you know, the question we got, I thought the question was a little bit, well, honestly I thought the numbers couldn’t possibly be right and I look a little closer to the study and the question does frame it, I think in a different way than what the study says.

The Question

Let me read the question real quick and then let you and I talk about it.

It says, according to prison policy.org, 76%, people in jails, that’s jail, not prison. So it’s kind of a short term deal typically. In 2016, they were not convicted of a crime. They simply couldn’t make bail. Of those people, 68% were accused of nonviolent crimes. It is no secret that an accused level of wealth is a determining factor in whether or not they will be able to pay the bill. Do you think that the fact that there’s such a large number of people being detained pretrial indicates that excessive bail is being required?

So you know, of course, studies nationwide, and I know you’re mostly dealing with Texas issue, but having been on Alec, you’ve seen some of this nationally as well. I don’t know if you look closely at that study or not.

But the 76% is actually, it doesn’t mean they were never convicted later. It just means this is pretrial. And it doesn’t mean that all of them couldn’t make bail. It’s actually about a third of them had to stay in prison because they couldn’t make bail. But it’s still an issue. So the real question is, have we got a problem with the way we do money bail?

Have We Got A Problem With The Way We Do Money Bail?

Phil:

The answer is yes.

First, let’s make sure we understand what a jail is.

A jail is not a prison. Generally, think of a jail as the city jail, the municipal jail, the County jail, that you go to when you are arrested. And what they’re talking about is people that are arrested.

They’re hailed for a couple of days, charges are filed and then they go before a magistrate who reads a little bit about the case, interviews the person, reads them a series of their rights. So kind of like Miranda rights. And then sets a bond amount. And that’s the amount that if they will place in cash that they can be freed until such time as they go to trial. So that’s really what the study is referring to.

Now, nobody puts up cash. Everybody hires a bondsman and bondsman, if you get a $2,000 bond, they usually charge you 15 to 20%. So you’re going to have to come up with $300 to $400 cash. And that’s what they charge you to put up that full amount.

Most People Who Are Arrested Don’t Have A Lot Of Money

But it is a real problem that so many people, I mean, frankly, most people who are arrested don’t have a lot of money.

Rick:

Yeah.

Phil:

I mean they were, they’re drug addicts, which is or, it’s a drug charge, it’s a family violence charge. There are things in their life that have frankly just made it where they don’t have a lot of liquidity. And so that’s the people that they’re saying, look, a lot of them are nonviolent.

Why are we keeping them in jail which is costing us $50 to $70 a day to take care of them and they’re not violent, so why don’t we let them out until trial?

The only reason they’re there is because somebody couldn’t have to come up with enough money. That’s a very legitimate point.

The other side of it is that it may be someone and often is someone who’s a drug addict and they’re out breaking into two or three homes a week or two or three businesses a week to get money for their drug habit or they’re committing other crimes. Although those were not violent crimes, we don’t necessarily want them out on the street.

We Don’t Necessarily Want Them Out On The Street

Rick:

Yeah, they’re still harmful. There’s still, you know, create chaos, absolutely.

Phil:

And just because this crime wasn’t a violent crime, the DWI or the theft or whatever it was, doesn’t mean they don’t have a record of violent crime, of assault to their family or of you know, who knows if it’s attempted murder, aggravated assault or anything. So here’s the key. And by the way, before it gets to key, let me tell you how large the numbers are and why this is such a serious discussion. I don’t know the numbers of people in jail in Texas today, but I can tell you there are roughly 140,000 people in Texas prisons today.

Those are people that had been convicted of a felony crime, a serious crime. 140,000. I can tell you that in the Harris County Jail, Houston today, there are probably 10,000 people just in that jail.

Some of those have been convicted of a minor crime and they’re serving some time in the County jail. Most of them are there, awaiting trial or just recently arrested. So we’re talking large numbers and a lot of money involved in caring and keeping those people, medical care, all those things.

Plus, if you’ve got someone that doesn’t really need to be in jail, waiting trial, we want those people out working. If they did DWI, if it’s a first time drug offense, we want them back with their family, we want them to work. We don’t want them to sit in jail for three months losing their job, losing their family and going through all that when they’re ultimately going to be put on probation anyway.

Rick: Not only bad for their family, but also then becomes more of a burden on the state.

Their Family Becomes A Burden On The State

Phil: Exactly. Their family becomes a burden on the state. So it’s a real dilemma and a big part of the problem, and what I mentioned to magistrate and I used to be a judge and so you’re arrested and I would have these people come up for me every day and I’ve got to set their bond. One of the huge problems is that you have very limited information about that person to know if there are flight risk, to know they are a risk of committing future crimes.

Are they violent? You’ll have a criminal history printout that may or may not be accurate. Typically, if they’re from out of state, you really don’t know much about them, and so one of the problems is getting quickly enough information to judge you so they know whether this person needs a $500 bond or a $50,000 bond.

You Need Good Judges

The other issue is you need good judges that, and don’t get me wrong, most are, and most of them, if there’s any doubt in their mind, they’re going to err on the side of keeping someone in jail because they don’t want someone to get out and hurt somebody or do something bad. But you also need very good judges who make good decisions and really take this seriously.

And when you’re talking about thousands and thousands of people in every state going before judges on this every day, it is a large number to deal with. But you’re absolutely right. We don’t put people in jail for crimes they had picked it up. And that’s the constitutional and ethical dilemma.

Rick:

So what do you see as, you know, beyond good judges, I mean, should there be major policy changes? I mean, I think if I read this study right and I wasn’t familiar with this group, they’re actually saying get rid of money bail. Don’t even have, you know, make it where it’s unsecured bonds and those kinds of things. Are there States that do that? Can that even work?

Phil:

There are some programs going on doing that in Houston and in Dallas today. And, so just put yourself in the place of criminal and you’re out robbing, stealing and whatever it is you do.

And Dallas County says, Hey, there is no cash bonds required here. If it’s not a violent crime, you’re going to be released on a personal recognizance bond or in Fort Worth next day, next door, you know, you have to still have to come up with a cash bond. Won’t you go ahead and commit your thefts ahead?

Rick:

No kidding. Yeah.

They Are Going To Lead To A Lot Of Problems

Phil:

So, I mean though, there are a couple of trail programs. My bet is that the way they’re conducting them, they’re going to lead to a lot problems. But I think the effort, I don’t think there’s a single answer. I think part of it is something that Texas is trying to do right now is come up with a better system of getting comprehensive background information on a defendant on an arrestee very quickly to the magistrate that’s going to be reviewing their initial case.

That’s a large database issue and it’s very difficult and it’ll never be perfect, I think when people travel in States and communities and all of that. But that’s a big part of it. Getting good information quickly into the hands of the judges.

Doing Away With Cash Bonds Will Lead To A Lot Of Havoc

The other thing is, as I mentioned, having good judges in place, but beyond that, just to go and say we’re going to do away with cash bonds, it’s going to lead to a lot of havoc.

And you just can’t let people out on the street without, and I know you mentioned this too, people say, well, they’re going to be out on the street anyway if they bond out. That’s true. Now bondsman, part of their job is to make sure that person shows up further hearings, make sure that person shows up for trial.

But the other side of the argument where these people have a legitimate point in their study is they say, yeah, but if they’ve got the money to bond out, they’re going to get on the street.

So what you’re really saying Phil is that if they don’t have money, they shouldn’t get out of jail. If they do have money, they should be able to get out of jail. And I mean, that’s the tension in this debate.

That’s The Tension In This Debate

Rick:

Let me ask you, Phil, on a step in that back and looking at the national culture and the picture there because those numbers, I mean that’s just Texas numbers that you were talking about. I mean, nationally, it’s outrageous how many people are in prison now and in jail. And you had worked on restitution and some other things in the past.

There’s also just the cultural issue of a lack of morality. And the more we move away from a moral society, the more this will become a problem. What would you say to some of that and just that bigger picture of things we need to do? I mean, are we, in some ways, these problems we’re talking about right now today, specifically to this just reaping what we’ve sowed for 50, 60 years.

Let Me Give You Another Example

Phil:

No, with that question. And I mean, that goes to every discussion, we’re having mass casualty shootings and everything else. But let me give you another example.

A judge told me this once, he said, Phil, let’s talk about DWI.

He said, I get three types of people who commit DWI. He said, I get one type is the person that gets arrested for DWI. They are so humiliated and so embarrassed that they had to spend 24 hours in jail and their friends and family, you know what, they will never drink and drive again. It’s over.

Then I get the other type, the next type that you know, they’re not particularly embarrassed. It was a big inconvenience, but they’re going to drink and drive again, so they need to come out of this with some kind of punishment that encourages them.

Hey, it’s just not a day in jail or 12 hours in jail. If you get bonded out, you’re going to have to come back and serve 10 days or weekends. You’re going to do mandatory community service. You’re going to be on probation, you’re going to lose your driver’s license for 90 days. If anyone have something that means a little bit and that’ll take care of them. Maybe they need to be required to attend AA for six months or something like that.

That Type Of Person Never Needs To Get Out Of Jail

He said, then I get the third type of DWI. That person is on their fourth, they’ve been arrested four or five times for DWI. They are risk to the public. If I let them out, they’re going to drink and drive again this week and one of these days they’re going to kill somebody. That type of person never needs to get out of jail. But essentially the penalties are kind of the same for all of those things as you, you know, until you’ve committed a lot of them.

So I mean, it’s the same thing with any criminal. Someone on minor possession of drugs, first time possession of drugs. Are they a drug addict? You know, is this just the first time they get caught have they been using drugs for five years?

Or is this really the first time they’ve ever used drugs? I mean there’s a whole lot going on there, but the whole cultural issue of not having families, managing family members, of having a culture that is built on a culture of violence and in some ways a culture of death with our approach toward euthanasia and abortion, so many other things.

The Problem Is The Criminal Justice System

The breakdown of the family, I mean, it all rolls into what leads people to commit a crime. What leads people to use drugs? What leads people to just have a violent temper? The problem is the criminal justice system. We don’t really get to fix that problem. We just have to deal with…

Rick:

Respond to what’s happening.

Phil:

Yeah.

Rick:

You know, it’s actually, it’s exactly, you know, Tim Barton says it really well about how you can’t have Liberty if you don’t have morality, can’t have morality without religion. And this a perfect example of that.

If the complaint is that we’re losing, you know, Liberty, innocent people that haven’t been proven guilty yet and all those things, well, this really is a result of the lack of morality in the culture.

It’s All Downstream From That

It’s all downstream from that. And I know that’s, you know, philosophical and it’s not concrete in terms of how to solve the problem, but it really is the heart.

Phil:

You mentioned the numbers and just what you said and you’re exactly right. So if that judge and that prosecuting attorney and that arresting officer are only having to deal with two people that day, that’s one thing. When they’re having to deal with 50 people that day, that’s a different thing. How much time do you have to really dig in…

Rick:

And get it right.

Phil:

Yeah.

Rick:

No, you’re right. That’s huge. Well, brother, we’re out of time. Phil King, state representative from Texas. Always good to have you, man. Thanks for coming on.

Phil:

Thanks.

Rick:

Stay tuned folks. We’ll be right back with David and Tim Barton.

Constitution Coach

Rick:

Hey friends, it’s Rick Green, America’s constitution coach and cohost of WallBuilders live. 2020 is upon us and every one of us has a responsibility to preserve freedom for future generations. We want to equip you to be the catalyst in your community, bring people together and get them excited about being a biblical citizen. You host our constitution class, a biblical citizenship class right there in your home and your church, at your community center.

We will give you the tools, we’ll train you, David Barton, myself and others will be the ones on the videos doing the teaching. You pass out of workbooks, put on the video and then have a great time of fellowship, engaging and equipping and inspiring each other to make the difference in your community. constitutioncoach.com is the place to sign up. We’re going to do a free webinar about how to do this on January 16th.

You can sign up right here at constitutioncoach.com we look forward to visiting with you and equipping you to be the catalyst in your community to preserve freedom for future generations. Got to do your part. It’s 2020, let’s all go out and make a difference.

Not An Easy Question or Easy Solution

Rick:

We are back on WallBuilders live, thanks to state representative Phil King for joining us today. Back with David and Tim Barton. I ain’t got, it sounds like you’re frankly not an easy answer to this question. Not an easy solution, I should say, to the challenges we’re facing on this one.

Tim:

It’s not an easy solution. It’s not an easy question to deal with. That’s why there’s such a big coalition, what’s called rotten crime, trying to do criminal justice reform and get some justice back to how you do this.

But it’s difficult because just because the crime for which they’re arrested isn’t a violent crime doesn’t mean they aren’t violent criminals.

This is one of the things we’ve learned from Rudy Giuliani when he was Mayor of New York city in 1994 through about 2000. He told the police officers, I want you arresting every shoplifter. I want you to arresting every turnstile jumper. And they said, we want to get the murderers and rapists. And they found that when they started arresting the shoplifters and the turnstile jumpers, that those were the same guys committing the violent crimes as well.

So just because you were jumping into turnstile doesn’t mean you didn’t murder someone else somewhere. And that’s the difficulty. So when they come in to be arraigned for one crime, that doesn’t mean just because the crime is nonviolent, that they’re not nonviolent criminals and that really complicates it and makes it very hard to come up with a standard that works.

Make A Contribution To WallBuilders Live

Rick:

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