Aug. 27, 2020

There’s no such thing as a get out of jail free card

There’s no such thing as a get out of jail free card

Here in the United States, bail can be an enormous deciding factor on who goes to prison and who doesn’t. And for how long they go or don’t go...regardless of guilt or not. 

But do you know how the bail system really works? Who profits from it? Who is put at a detriment because of it? Likely not. So we’re dissecting the bail system—and getting real about its inherent, systemic issues. 

Today on Business Casual, I’m interviewing Adam Foss, a widely respected criminal justice reform advocate and an advisor to the Bail Project. He’ll explain precisely how the bail system fits into the broader private prison ecosystem in the United States. A small taste?

  • Did you know the concept of bail dates back to feudal England? And really hasn’t been meaningfully rethought since serfs were a thing?
  • Or that some bail funds pick and choose which incarcerated people to help, while others take an “anything goes” approach, regardless of alleged offense?

 

There’s so much more to learn.

And after a summer of reading the words “donate to bail funds” over and over again, it’s high time you get an idea of what bail funds actually do...and why they want to be put out of business. 

Listen now.


Transcript

Business Casual - Adam Foss.mp3


Kinsey Grant, Morning Brew business editor and podcast host [00:00:08] Hey, everybody, and welcome to Business Casual. It's me, Kinsey Grant, popping into your headphones once again with a big, burning question. You know what it is? Time for your four favorite words: let's get into it. [sound of a ding]


Kinsey [00:00:22] Last time, we laid the groundwork for the prison industrial complex, what it is, and more importantly, who benefits from it. But I think there's a really important question to ask now. What about bail? Here in the United States, bail can be an enormous deciding factor. Who goes to prison and who doesn't and for how long they go or don't go, regardless of guilt or not. It's also a notoriously rigged system. But there is a growing call to change that system, and it's gaining dollars along with a lot of steam, especially this summer. 


Kinsey [00:00:51] So today, we are talking about bail and bail funds, what they are, how they came to exist, and where they fit into the broader private prison system here in the United States. We've got a lot to cover. But the great news is I have the perfect guest here to do it with me. Adam Foss, a widely respected criminal justice reform advocate and adviser to The Bail Project. Adam, welcome to Business Casual. 


Adam Foss, criminal justice reform advocate [00:01:15] Nice to be with you, Kinsey. Thank you for having me. 


Kinsey [00:01:18] Yeah. Thank you for coming on. Can you tell me just a little bit before we get started with all of these questions, what The Bail Project does? 


Adam [00:01:25] The Bail Project is perhaps the largest bail fund in the country. They use philanthropic dollars that they go out and raise to bail people out of pretrial detention all over the country, supporting local bail funds in pursuit of justice. 


Kinsey [00:01:40] OK. The pursuit of justice is certainly a noble pursuit and one that we've been talking a lot about this week on Business Casual. It's kind of a thorny topic, I think, for a lot of reasons. It involves getting uncomfortable with the status quo that has existed in the United States and maybe the world, [chuckles] I would argue, as well, but especially here in the United States for so, so many years. It is truly systemic. And I want to get to the root of that today. Before we start talking about bail funds, specifically what they're doing, why they have become so important in these last several months, I have a question. Do you think that innocent until proven guilty has ever really been the case in the United States? 


Adam [00:02:19] No. 


Kinsey [00:02:20] Why is that? 


Adam [00:02:23] [laughs] Because we are a country that's really, really good at using words that we strive to emulate and to sort of operate under. But when it comes down to it, we are human beings and our behavior is not always commensurate with the things that we espouses, our values. And so just the idea that someone in this country could be proven innocent until proven guilty, you start to run into critiques of that catch phrase from the time that a person is arrested. Nothing about the process from the time that they're arrested to the time that they are either found to be guilty or not guilty—there's nothing about that that any objective person would say, like, I feel innocent. It is quite the opposite. And so, that's a hard no on that one. 


Kinsey [00:03:10] So how has the bail system, as it exists today, played into that hard no?


Adam [00:03:15] The bail system perhaps is the greatest example of the failure of us to live up to that standard, in that when I am innocent, when I'm an innocent person, I can still spend years, or months, or days, or even minutes incarcerated. And that, again, if you asked a four-year-old the definition of innocence, they would not tell you that means spending months or years in jail. That means actually you don't spend any time incarcerated until you are, in fact, deemed to be guilty. And so the bail system, the attachment of monetary dollars that you have to pay to get your freedom, flies right in the face of the presumption that you are indeed innocent. 


Kinsey [00:03:59] Right. So if that makes perfect sense to a four-year-old, how does this system work today? I mean, could you just maybe walk me through what it's like to go through the bail process when bail is set? Who sets it? What it means? Where the money goes. 


Adam [00:04:15] Sure. When you are arrested for a crime, you are taken to a police station and you are processed. Part of that process is, say you're arrested at 6:00 p.m. in the evening, a person who lives in that community, or works in that community, the bail commissioner comes to the police station and sets an original bail. That person does not need to be a lawyer. They do not need to be a law enforcement official. In fact, oftentimes they are neither, but they determine some bail amount that will, quote unquote, allow you to leave before your court hearing. 


Adam [00:04:51] So that's important for people who are arrested on a Friday afternoon or over the weekend. Having that person come in and set a bail for you, theoretically, is important because you should be able to post a bail and get out. If you don't, though, there are constitutional requirements that make you get a second chance at a bail hearing in front of a judge or magistrate, where you are assigned an attorney. The state will ask for a bail amount, either to keep the bail that has been imposed on you or to ask for something greater. The attorney for the person who is accused of the crime will argue against that bail and the judge will ultimately set the amount of bail that they've determined is necessary to ensure that that person will return to court. 


Kinsey [00:05:35] One of the biggest sticking points when we have this conversation around bail as it exists today is that—and this is borrowing from The Bail Project's words—it's become a mechanism for incarcerating low-income people before trial. This is something that exists specifically along socioeconomic and racial divides. Can you talk a little bit more about that? 


Adam [00:05:55] Sure. I think the Kalief Browder and Harvey Weinstein cases are a good way to draw an example of the point that you are trying to make, which is while the concept of bail maybe was a virtuous one, that we want people to come back to court, and a way to do that is to have them put up something of value so that they will return to court. That virtue and that system was built and conceived of centuries before there was slavery or the United States of America or cities or redlining or redistricting or Jim Crow. And so, unfortunately, the albeit tenuous virtue of the idea of bail as it was conceived centuries ago, it just doesn't make any sense anymore. 


Adam [00:06:40] And so you get these really disparate outcomes where you have a kid like Kalief Browder who is charged with stealing a backpack, who spends three years on Rikers Island in solitary confinement and ends up taking his own life as a result of the harm that he [indistinct] there, because he couldn't afford to really, you know, like a bail that for Harvey Weinstein is a joke. It's pocket change. And so, on the Harvey Weinstein side, you have a guy who is objectively unsafe when it comes to harming women. 


Adam [00:07:09] There are multiple allegations of sexual assault and sexual abuse against Harvey Weinstein. The court set some bail that to me, is astronomically high, to people who are living in low-income it might as well be a billion, trillion, bazillion dollars. But Harvey Weinstein is out in the afternoon because he has the money to make that bail. And so if you think about, again, the virtue of the idea of bail, we should be much more concerned about Harvey Weinstein absconding, because not only because of the charges and the severity and exposure against him, but also his ability to actually get on an airplane and leave and disappear. 


Adam [00:07:51] Whereas Kalief Browder, who was charged with, ultimately, a case that was dismissed because he was innocent, the question we should all be asking ourselves is, if he can't afford a $500 bail, where is it that he is going to go that we can't find him? And so the entire construct falls apart when you start holding up the socioeconomic and the racial disparities that are exacerbated by and eliminated by the bail system. 


Kinsey [00:08:16] Bail is a system that was created centuries ago. It's incredibly old and it is far older than a lot of the systemic problems at play in the United States right now. How do we solve it? Who do we look to make sure that bail is created more fairly, that this concept does go back to this virtuous outset that it had back in, I don't know, feudal England? [laughs] 


Adam [00:08:39] Yeah, feudal England is right. It's in the Magna Carta. Who do we go to? I mean, that's a loaded question. Unfortunately, it has been the communities most impacted by the unfairness of the bail system who we've looked to as the advocates to break through the system to advocate for its destruction or reformation. The people who are suffering the most from the problem are often the ones who are also given the burden to solve the problem. 


Adam [00:09:11] As someone who comes at this work from the prosecutor's side, I don't understand why the system isn't leading to solve the problem, because this is just another example of the criminal justice system continuing to participate in activities that are fundamentally causing disparate outcomes to the communities that we want to be helping the most. And so every time that we continue to participate or complicit in the outcomes that are this disparate, we are short-circuiting the trust that we want to have with the community so that when they are harmed in their homes, they're picking up the telephone and calling the police. 


Adam [00:09:49] We lose integrity every single time we stand out there as system actors and say this is a fair system, there's nothing wrong. We really should be the ones that are taking this head-on and realizing that this hurts our bottom line. But we are a group of fragile, egotistical supremacists. Just think of all the words. We have a fear of relinquishing the system because of what it means about being wrong for as long as we've been wrong. 


Kinsey [00:10:17] You used two intriguing words that I want to ask you about here. One, destruction versus reformation. What do you think is necessary? Is it destruction or is it reformation of the system? 


Adam [00:10:28] I don't know that you can reform a system that is built on a virtue that has—like bail has never—in this country, certainly—bail has never lived up to that virtue. Neither has presumption of innocence, frankly. But I don't know that we can pick around the edges and make bail a better system. I think destruction, really the deconstruction of the bail system as we know it and a rebuilding and transformation of that system, is what is warranted. 


Adam [00:11:02] Because what I do not believe, and what I have empathy for, is there are instances where a person is too dangerous to be in the community, and that is either to an individual in the cases of domestic violence, I'm thinking about, or the abuse and assault of children, or they are extremely, extremely mentally ill and are not in a place where they can be in society. And then, of course, there are the people who will abscond. There are people who will jump bail. And what's funny about our bail system is like, media has tons of stories. We sell stories all the time of people who are jumping bail. But they're like the very, very sociopathic, wealthy, typically white men who commit crimes and flee to Brazil. 


Kinsey [00:11:55] Criminal justice obviously needs a major change. [laughs] We're talking here about destruction versus reformation, neither of those are let's stick with the status quo. And I think we've recognized that more so in recent months than we have previously. But could the criminal justice system, in what's good about it, you know, that we do have consequences for our actions and the pursuit of trying to create a safer society for people like you are talking about, you know, to keep real predators, violent criminals out of society. If we totally got rid of the bail system, could that good part of the criminal justice system still exist? 


Adam [00:12:31] Yeah, but I'd also want to get super-crystal clear on what the good parts are, because there are a lot of people who we label as violent that are sitting in jails and prisons for long, long periods of time, who either did something violent and, statistically speaking, have the lowest recidivism of any people that are sitting in prison, or because they did something violent, because they are extremely ill and need to be somewhere that is not a prison, or because—and this is where my background in juvenile justice really comes up—there are lots of people who are sitting in prison for violent crime that were standing around when someone else committed a violent crime. 


Adam [00:13:13] And that is because they are young. We know lots of things about young people. But one of the things is, very rarely are they acting alone. And so when I was a juvenile prosecutor, I saw lots of cases come in where there were four co-defendants charged with armed robbery, but only one of them had the weapon. And yet all of them could have gone to jail for the same amount of time. And so we have to be really, really careful focusing in on what are the good parts of our system. 


Kinsey [00:13:38] So are there good parts? 


Adam [00:13:41] I think there are. I think that there are good parts of the system. I think that having a structured place for these transactions to be happening is good, and to have somewhere centralized in the community for people to go when they've been harmed and to have some system mediating that harm is a good thing. I think that holding people accountable is a good thing. I think safety is a good thing. I think that making victims feel whole is a good thing. 


Adam [00:14:09] I think that in the very rare instances where people need to be separated from their community to stop harm is in, again, a very limited set of circumstances, a good thing. What is a bad thing is that we continue to try to squeeze all of those virtues out of, again, a system that was created and designed centuries ago without a modicum of innovation or investment in the parts that are good and instead, are doubling down on the things that we know are facially invalid and are ineffective. 


Kinsey [00:14:43] And for a country that values innovation and transformation as much as we say we do, wouldn't you think [laughs] maybe we would apply those values to this system as well. 


Adam [00:14:53] Pretty basic. 


Kinsey [00:14:54] Right. Right. 


Adam [00:14:55] Pretty basic. 


Kinsey [00:14:56] But, you know, any change to something that's this big and cumbersome obviously is going to have major consequences. I want to talk more about what those are in just a second. But first, a short break to hear from our sponsor. — And now back to the conversation with Adam Foss. Adam, a lot of community bail funds, in my research for this conversation, I found actually want to put themselves out of business. They want a world in which they wouldn't have to raise money to bail people out. They don't want bail to exist at all. Can you tell me more about what that thinking looks like? 


Adam [00:15:28] Sure. Bail funds are, as a formal or entity organization, bail funds are just about a century old. But it makes sense when you think about what is at the core of the bail fund, that they've existed for a long period of time. When families and communities recognize that despite this virtue that we espouse about being innocent, people are being held on pretrial detention, that removal of the community has a lot of damage that it creates to those communities. And so communities have forever been collecting funds and bailing people out. 


Adam [00:16:02] In the '20s, the ACLU created what is sort of like heralded as the first community bail fund. It was built because the government was going around arresting people accused of being communists. People had a lot of problems with that. And as a result, the ACLU started this fund to bail out people who were unjustly being accused of having a different political affiliation than democracy. That was sort of the first example of a public bail fund. You see it again happen during the McCarthy era. Again, for the same reasons, political prisoners being arrested because they weren't down with J. Edgar Hoover. 


Adam [00:16:46] You see it again in the civil rights movement. Churches and families again pulling their resources with groups like SNCC and SCLC through the Vietnam War. You see the same thing with protesters. And then again, during the AIDS epidemic and the gay rights movement of the '70s and '80s. And then fast forward and really, the attention that the bail funds have received has been, in the recent decade, around just this real problem with the racial and socioeconomic disparities in bail. And the philosophy just is, like, the government should not be able to hold onto someone because they are poor. 


Adam [00:17:21] We should not distress the families who are already distressed in many ways, causing them to do things like put a second mortgage on their home or go out and steal or make false choices between rent and bailing out a loved one. There's plenty of wealth in this country that we should be able to set up funds for people to donate to, and we should bring people home who are innocent. And that's really the spirit of bail funds. 


Adam [00:17:46] I think what you are intimating at, Kinsey, is there's also a part to the strategy that is case-making for the fact that we don't actually need bail—that people are safe in communities, that they will return to court if they're just surrounded with the proper supports. And in the cases of people who are violent, who don't need to be here, there are other ways to make sure that we are safely detaining them, but also not doing so in violation of people's constitutional rights. 


Kinsey [00:18:14] Right. So can you walk me through the logistics of how a bail fund works? Let's say one of our listeners donates money to a bail fund. What's the journey of that money? 


Adam [00:18:24] From a really, sort of, high-level and unsophisticated explanation — 


Kinsey [00:18:29] Perfect. 


Adam [00:18:29] That money goes into a 501(c)(3) fund, a nonprofit, a charity, basically. That charity is staffed with people who will go find out about the people who were incarcerated the night before or if they got a request from family member. They do some level of screening in lots of places about who this person is. And, you know, whether or not this is a person that they are going to take the next step and bail out. They bail them out. 


Adam [00:19:00] And the sort of genius behind the bail fund as opposed to other sort of charitable organizations, is that that money comes back to the organization. As long as this person continues to come back to court and the case is disposed of, that money comes back to the bail fund. And so, unlike a lot of other philanthropic dollars, it continues to return on the investment. And so that is, from the very, very high level, if one of your listeners donates to a bail fund, that is what you know—that your money is going to freeing a person who is, by our Constitution, technically innocent. 


Kinsey [00:19:33] So how do you differentiate who gets the bail money and who doesn't from a bail fund? What's the process like for that? 


Adam [00:19:41] So there are some bail funds that are restricted by legislation around the amount that they're allowed to post. There are some bail funds that are legislated or, as an organization, has built into their sort of mission statement that they will or will not bail. And so there are some bail funds that will avoid violent crime. There's some bail funds that will avoid offenses that are sex offenses. And then there are some bail funds that will just say, you know what, the bail system is abhorrent, ridiculous. And as long as we have the funds, we're gonna bail people out. And so that's sort of the continuum of what that screening looks like. 


Kinsey [00:20:19] So, Adam, you probably knew that this question was coming, but recently we've seen a lot of headlines around the bail fund in Massachusetts that bailed a large group of people. They were on the far end of that spectrum. But one of the people they bailed was a convicted rapist, who has since been charged with a new rape. What does that mean for the bail fund community and industry? I don't want to call it an industry, but I guess the community of bail funds at large when things like that do happen. 


Adam [00:20:47] Thank you for asking the question. I would be negligent of me to walk into a conversation on bail funds and not be up to date. I think this is really a tension between virtue and strategy. Because in the exercise of righteous and virtuous boundary making, and so the Massachusetts bail fund has on their website: "It does not matter what you are charged with. It does not matter what your record looks like. If a bail is set, we will post it." 


Adam [00:21:18] In some ways, you just got to respect that. You've got to respect that they are so virtuous because their argument is like, listen, if this guy was wealthy enough, the same result—like this is a problem with the bail system—the reason that we are opposing the bail system is because it disproportionately affects poor people and people of color—that this person was able to make bail should draw in question the problem with the bail system, not a problem with the bail fund. 


Adam [00:21:42] But that is a nuanced conversation, and that is one that even I struggle to articulate. And it took me a couple days to, as a member of the advisory board of The Bail Project, but also as a person who works with prosecutors, a person who is always thinking about messaging around safety, as a person who is supporting people coming home often, it is something that you have now served up to the haters, a really, really powerful story that is going to close people's ears off about bail funds. You are going to scare a lot of people away from supporting these organizations because of stories like this. There's a behavioral economics construct, a concept that is used oftentimes in relationship to restaurants. 


Adam [00:22:28] But it's sort of just like this idea that if you have a good experience at a restaurant, you will tell one person. If you have a bad experience at a restaurant, you will tell 10 people. Rarely do you go on Yelp and see good reviews of restaurants. Almost always you see bad reviews of restaurants on Yelp. And it is because, as human beings, we don't do a very good job of holding up the good stories of the thousands and thousands and thousands of people that the bail funds have bailed out with no incidents whatsoever. 


Adam [00:22:56] But the bad ones are the ones that get us. And so my position on the advisory board of The Bail Fund is really just to caution against those stories and making sure that, as we case make—I agree with the ability to case make through the use of bail funds. The bail does not exist, but there is the reality that we have to do so strategically and probably more incrementally than people who maybe more of a virtue than I do are willing to tolerate. And I understand that and I respect them. I just think about the reality of being a prosecutor when something like that happens. I will wager my next year's salary that you will see an increase in pretrial detention in Massachusetts over the next several months because of this incident. 


Kinsey [00:23:39] Oh, interesting that that has a lot of [laughs] implications. Is the Massachusetts bail fund now just going to be moot because of this one case? 


Adam [00:23:50] I think another interesting caveat to the story, or another variable in the story, is a lot of bail funds saw a ton of money in the last several months. And I think people who were donating in that time were donating thinking that they were going to help protesters out, sort of in the spirit of the original reasons that bail funds were set up. People viewing protesters or communists or Vietnam War protesters or the gay rights community or the AIDS rights community as being political prisoners who shouldn't be held. There are people who were donating a lot of money to bail funds in the last few months to help out protesters. 


Adam [00:24:30] And I think that there is going to be the sort of comeback round of people being like, what—my money went to bail out who? I don't know what their budget looks like at this point in time, but if they have money in the tank and they're still getting donations, then there is nothing to stop them from bailing people out. The government can't stop them from bailing people out. But again, if you're thinking about an organization and what's going on in the backrooms there, I have to imagine that people are now being like, ooh, we can't do that anymore. 


Adam [00:24:59] And so there will be a chilling effect, both in terms of all bail funds across the country, but, and this is the tension, right, it's like your righteous and virtuous act has impact on other people, it's not just gonna have an impact on the Mass. bail fund. It's going to have an impact on lots and lots of people all over the state, all over the country who don't have the benefit of having a fail fund in their backyard. 


Kinsey [00:25:20] Right. 


Adam [00:25:21] And I remember, I was a prosecutor when there was this really bad—it didn't involve a bail fund, but it did involve a prosecutor not asking for bail for a person who was accused of a domestic violence case, who then three days later went and murdered his girlfriend. There was a dramatic increase in the pretrial detention population, not just in that community, but in all other communities, because all of us were like, oh, God, we don't want that to happen. And so police act differently. Prosecutors act differently. Judges are acting differently. Bail commissioners are acting differently. 


Adam [00:25:53] And it makes it really hard for defense attorneys to argue about, you know, while the reason for bail is to make sure a person returns to court, when really resonating on the minds of people is like, yeah, but this happened. And again, if you take it back, separating virtue from the fact that we're human beings, it's difficult to not see all the really negative implications of what happened. 


Kinsey [00:26:16] Right. Let's talk more about this unrest in this specific moment in history as it pertains to bail funds. But quickly, a short break to hear from our sponsor. —


Kinsey [00:26:26] And now back to the conversation with Adam Foss. Adam, you touched on it briefly before. I'm curious if you think that people who have donated to bail funds say, since George Floyd's murder, understand what a bail fund is? Or do you think this was just a trend that people picked up on? Or is it something that's going to last well into the coming months and years after this moment? In our collective shared history of the summer and really taking up this mantle against systemic racism, will this last or is this just a trend right now? 


Adam [00:27:01] So my organization is sort of like branded as a civil rights or criminal justice reform organization. Ultimately, we are accountable to the people who are being prosecuted in communities, who are ultimately Black and brown and poor people. But we don't really stand out as like this Black Lives Matter organization, like we are not those folks. And yet we saw the same hit because people were really just looking for a way to respond to a crisis that they were unaware of. 


Adam [00:27:29] Sadly, but not surprisingly, that attention and that urgency and that influx of dollars went away pretty quickly. And I want to give credit where credit's due. It didn't go away as quickly as it has maybe in other moments where another Black person was being killed on the street. But I don't think that the interest was people's realization that there is a problem with the bail system and that bail system is tied to systemic and institutional racism and that they, as individuals, can do something about that by donating to bail funds. 


Adam [00:28:04] I think, unfortunately, and maybe cynically, that the influx that we saw in all of these organizations was more performative, assuaging of guilt and anxiety, and not a real reckoning with the fact that donating to bail funds and organizations that are supporting Black lives are actually just paying down a debt on a credit that we are all under, and will continue to be under until these inequities do not exist. 


Adam [00:28:33] I'm sorry if that's a downer of an answer, but that's how I feel and from based on what I've seen. And I'm looking forward to the white paper that shows that reality, because I think people need to be reminded that a one-time donation to a bail fund is not resolving the problem for the people who are languishing in jails. That is resolving a problem for the people who are making the donation. 


Kinsey [00:28:58] I got to be honest, Adam, that's really sad that we have had this moment that we have labeled as a moment, and you think that change is going to come from it. But so often, to your point, it's changed for one specific person who is not a victim of that system. I think a lot of us can understand when you made a donation, if you made a donation, have you gone back and re-donated or considered doing it again if you are in the position to do so? So what should people be doing? If they want to continue the conversation or they want to continue trying to make an effort to dismantle the system that has been so oppressive and so unfair for so long. What's the next step? 


Adam [00:29:39] The next step is, like learning is an action and we sort of throw it away. But people like learning about what bail is and what it is not. And then turning that learning to your children is the way that we get out of this problem. There are not enough donations that people can make unless they are willing to part with a substantial amount of their income that they could actually feel. That, in my mind, gives people the permission to take their foot off the pedal. These are deeply conditioned biases that we hold. 


Adam [00:30:14] It is racism, not as of a moral failing of an individual person, but racism as a language that our country was built upon and we all speak it. Doesn't matter who you are, what you look like. It is impossible to escape from racism in this country. We are fed it from the time that we are babies. And as a result, one action does not absolve you of that. You have to do as hard work unlearning it as people put in the work teaching it to you. 


Adam [00:30:44] And the hope and the optimism in that is, Kinsey, I don't know how old you are, but if I tried to learn a foreign language at this point in time, it is going to take me years to get to fluency, and that is by putting in hours a day. But if I took my 3-year-old nephew and tried to teach him the same language, he is going to be proficient and then fluent way quicker than I will. And so the first action stuff for people is to stop telling yourselves the thing that we tell all of ourselves, which is kids are too young to grapple with this. We are doing them no good. We are disrespecting them. 


Adam [00:31:20] We are continuing our problem by treating our children as stupid, fragile things that are only virtuous. Your children already are making decisions about who to play with, about who to make fun of, about who to try to date based on the color of their skin. And it's not because you are a racist parent, but it's because the content of things that they have received has told them that white people are better. And so really focusing on putting in that work on yourself and your kids is the commitment that people need to make. 


Adam [00:31:55] That is not just individual work. That is anytime that you are with friends or family who are having these conversations. If you truly believe that Black lives matter, if you donate to a bail fund because you wanted to help people out, then the thing that you can do the best from being an ally is coming off of Instagram—because I don't care about your black square. I don't care about your hashtag. I don't care about your picture of Breonna Taylor. 


Adam [00:32:20] What I do care about is that you were sitting at Thanksgiving and checking all of your relatives when they start to come sideways and stop doing the thing that we do to stay comfortable by genuflecting and just being like, oh, that's Uncle Jim. No. People of color do not get that benefit. We are uncomfortable all the time. So unless you are feeling discomfort on a daily basis around these topics, then you are not nearly demonstrating the level of commitment to the things that you say that you're about that is going to lead to that absolution. 


Kinsey [00:32:50] Absolutely. I could not agree more. I mean, we all need to get more uncomfortable and in a lot of ways, myself included, and I'm glad that you have taken so much time to help us understand this and to really speak to just what we can do. It's not just signing a check or [indistinct] something or posting [laughs] to your point, posting something on Instagram. It's so much more than that. And like we have said, and in a couple of episodes recently, that this is a conversation that needs to continue to be had. 


Kinsey [00:33:19] I hope that we can come back in a year and the ball will have moved forward in some capacity. Maybe we will do just that. But, you know, Adam, we've covered so much in this conversation. But just one more question for the road. Why did you get involved in this part of the conversation around racial injustice and systemic injustice in the United States? What drew you to the bail conversation so much? 


Adam [00:33:44] I don't know that there's anything that drew me to the bail conversation so much. I was drawn to just the inequity of the entire system. What I did not realize, though, is how much of that inequity is actually not on the back end. It starts way, way on the front end. And we are conditioned, again, by media to believe that the trial is the paradigm of fairness and equity in the criminal justice system. A jury of your peers, presumed innocent until proven guilty. The reasonable doubt standard—all these things. 


Adam [00:34:10] But what I did not realize until I was a prosecutor was how important that decision around bail was and the entirety of that case. And not just because I cared about my case, but because that is really where we start the subhumanization, dehumanization of people and actually create barriers that are incongruent with the things that I say I care about. When I learned that, as a rookie D.A., we were thrown in the arraignment session because it's so busy and there's so much going on and it's just brutal. You have to stand there all day. You're literally processing hundreds of cases a week. And that's where you sit as a new person until you've graduated, where you can, like, sit in your office and work on more serious cases. 


Adam [00:34:55] And that's how we evaluate the value of prosecutors. But we would only do that in places where the recipients of that treatment are poor, Black, and brown people, because that day is way more important than any other day in your journey to the criminal justice system, because it is the day that people dictate whether or not you'll be home during the course of the prosecution of your case. It is the day where it is decided what will go on to your board of probation record. It is the day that is decided what you will and will not be charged with. 


Adam [00:35:22] And as a result, the confluence of those decisions will dictate the rest of your process through the system. And so that is the spot where I wanted, particularly working with prosecutors, for people to understand that this is actually the most important part. Stop putting the rookies there. And if you are going to put the rookies there, give them some more tools and guidance and resources around what is the best outcomes for people, because when I was arraigning people for selling crack cocaine and thinking that if I held them on bail, that I was going to better increase the chance that they would come to court. 


Adam [00:35:59] I did not know that I was taking away whatever marginal employment they had. I was putting in jeopardy their housing. I was taking them away from their families. And as a result, I was actually creating more danger in those communities. And I feel that I was robbed by the system that is supposed be holding robbers accountable. 


Kinsey [00:36:20] Yeah, it's an enormously important point and I think a fantastic way to really drive home this conversation. So thank you so much for taking the time, Adam. There is definitely a lot to be learned for me personally, and I think for a lot of our listeners out there. And I'm glad that we had this starting point to begin having a conversation and get some context for why it matters, where this money goes, how it's put to use, how it is unfairly put to use. So thank you so much for taking the time to come on Business Casual. 


Adam [00:36:49] Thank you for having me, Kinsey. I really appreciate it. And I look forward to our next conversation. 


Kinsey [00:37:00] Thank you so much for listening to this episode of Business Casual. I want to give a quick shout-out to our amazing summer intern, Cynthia, who produced the episodes this week that you just got to hear. She's been an incredible addition to our team this summer, and we're so grateful to have her. Now, like Adam said, this is a conversation that hopefully is just getting started. I would love for you to join in and start having the conversation with me on Twitter. 


Kinsey [00:37:23] I'm @kinseygrant. That's @ k i n s e y g r a n t on Twitter. And I'll see you next time. [sound of a ding]