Bail reform is the effort to replace money-based pretrial release with assessments of whether a defendant poses a flight risk or a danger to the community. In the episodes, guests and host treat the cash bail system as a “stealth area of profound abuse and unfairness” that detains people who have not been convicted, and they describe reform experiments in Ohio, New York and elsewhere.
The problem with cash bail
Robert Alt, CEO of the Buckeye Institute, told Bob Zadek that most people in Ohio jails — 57% on average — have not been convicted of anything and are awaiting trial. Some have been denied bail, but in most cases they are held because they cannot pay the cash bail set for release. Alt said the Supreme Court has found that people cannot be held in jail before conviction as punishment; detention is permissible only to assure appearance at trial or to address a public safety risk. He argued that cash bail does not reliably serve either purpose. Robert Alt of the Buckeye Institute: Power to the States (2017)
Alt offered two contrasting cases. Marcus Brown, a young man in the Dayton area, was picked up for trespass after transit officials said his hoodie violated a dress code; he needed $150 bail, and his mother took out a vehicle title loan to raise it, a process that took about eight days, so he spent more than a week in jail. In a Pennsylvania case, a defendant facing what Alt believed was a potential homicide charge posted $100,000 bail and, while on release during the pretrial period, killed someone. Alt drew the lesson that the ability to pay does not establish that a person is not a threat or a flight risk. Robert Alt of the Buckeye Institute: Power to the States (2017)
Zadek framed the same problem in his introduction to Scott Shackford, an associate editor at Reason.com, describing bail as the “ugly underbelly of the American criminal justice system” because it makes freedom purchasable. Zadek said the primary purpose of bail is to ensure appearance at trial, not to punish or incarcerate, and that a defendant who is not a flight risk should not have to put up money. How Bail Traps the Poor in Jail with Scott Shackford (2018)
Risk assessment as an alternative
Alt said the Buckeye Institute advises using risk assessment rather than monetary bond to decide who stays in jail. The relevant questions are whether the individual is a flight risk or a danger to the community, and whether monitoring such as an ankle bracelet or other check-ins could allow release. He said short jail stays sharply raise the risk that a person loses their job, which in turn raises the risk of future crime by removing economic opportunity. Robert Alt of the Buckeye Institute: Power to the States (2017)
The approach was tried first in Lucas County, Ohio, where Toledo is located. Alt reported that with risk assessment toolkits tailored to the individual’s offense and likelihood of causing problems, 19% more people showed up for court and less crime was committed by those awaiting trial. He said the institute was expanding the experiment to Cuyahoga County, where Cleveland is, and hoped to go statewide. Robert Alt of the Buckeye Institute: Power to the States (2017)
Politics and opposition
Alt said legislators have been somewhat receptive and that bail reform can assemble a bipartisan coalition of left and right. Prosecutors are frequently reluctant, though on mens rea reform they ultimately agreed to the formulated changes. On bail reform, Alt identified the bail bondsmen as a massive lobby against the issue, and said they had recruited Dog the Bounty Hunter from the reality show to speak out against such reforms. The larger obstacle, he said, is the knee-jerk tough-on-crime response: legislators show they take a heinous crime seriously by creating a new crime, even though most conduct is already covered — he noted more than 100 fraud crimes already in federal statute. Robert Alt of the Buckeye Institute: Power to the States (2017)
Zadek, in the Shackford episode, described judges as human beings with a bias toward high bail: a judge will never face a headline for setting bail too high, but might face one for setting it too low if a released defendant commits another bad act. He said bail reform measures had been tried with mixed success and had somewhat bipartisan support, and that Senator Rand Paul and Senator Kamala Harris had joined forces on bail reform measures. How Bail Traps the Poor in Jail with Scott Shackford (2018)
New York’s reform and its rollback
Joe Lancaster, an associate editor at Reason, told Zadek that New York’s Democratic-controlled legislature implemented a bail reform in the 2020 budget, taking effect January 1, 2020. The law designated most misdemeanors and most non-violent felonies as charges for which cash bail would not apply, so a judge could not set a money amount and the defendant was released on other conditions. Checking in on Bail Reform (2022)
Lancaster said that after the law took effect there were anti-Semitic attacks in New York City that stirred public feeling, and two months later COVID lockdowns began; that summer brought racial justice protests and a rise in violent crime across the country, including New York City. Within a few months the administration was pressured to narrow the reforms, and it expanded the crimes for which bail could be applied. Checking in on Bail Reform (2022)
Zadek opened that episode by describing his morning reading of the New York Post, which he said runs daily articles beginning with a violent crime in New York City and noting that the alleged perpetrator had previously been arrested and released without bail by a judge the paper names. Zadek said the Post blames the judge or the system for the later crime. Checking in on Bail Reform (2022)
Constitutional and historical framing
Zadek said bail has been part of Anglo-American jurisprudence since the Magna Carta and is specifically provided for in the Eighth Amendment, which warns that excessive bail shall not be assessed. He said the founders knew about and cared about bail, and that its importance lies in the fact that the opposite of bail is incarceration — the deprivation of liberty, which he called probably the most powerful and serious power government has. He stressed that the bail decision occurs early in the criminal justice process, before anyone has been convicted, and that conviction requires due process and the safeguards ingrained in the Constitution and statutes. Checking in on Bail Reform (2022)
Zadek also said bail is an area of great agreement between libertarians and the progressive left, a meeting of minds that diverges from the New York Post and those who share its values. Checking in on Bail Reform (2022)
Across episodes
The topic recurs across three episodes spanning 2017 to 2022, and the excerpts show a shift in emphasis rather than a change in argument. Alt in 2017 and Shackford in 2018 present the case against cash bail and the risk-assessment alternative, with Alt supplying the Ohio county data and the Marcus Brown and Pennsylvania examples. By 2022, Lancaster’s account of New York’s law and its partial rollback supplies the political aftermath: a reform enacted, then narrowed within months under pressure from crime coverage. Zadek’s framing is consistent across the episodes — bail as a liberty question, judges as headline-averse, and reform as a bipartisan cause. The later episode adds the concrete legislative reversal that the earlier two anticipated only as risk.
What the sources do not cover
The excerpts do not state the text or holding of any case, the name of any bail statute, or which amendment a court relied on beyond Zadek’s reference to the Eighth Amendment. They do not give the outcome of the Lucas County or Cuyahoga County experiments beyond Alt’s reported figures, nor any evaluation of New York’s narrowed law. The Shackford excerpt breaks off before the discussion of protective detention and the New Jersey model, so those subjects are not developed here.