Cash bail and the price of liberty
Bob Zadek opened a July 2018 episode by framing the Eighth Amendment as a founding-era guarantee: bail was important enough to the founders to have found its way into the Bill of Rights, and the amendment’s statement was quite clear—“Excessive bail shall not be required.” He read “shall not” as “may not be required,” and said the founders felt the subject of bail was pretty gosh darn important. How Bail Traps the Poor in Jail with Scott Shackford (2018)
Zadek put the question to his audience in the language of first principles: Americans take pride in life, liberty and the pursuit of happiness, as Jefferson wrote in the Declaration of Independence, but how would they feel if they lived in a country where freedom has been so cheapened that it can be bought? For many Americans, he said, freedom can only be purchased. The episode’s guest was Scott Shackford of Reason magazine, whose piece was titled “Innocent Until Proven Guilty, But Only If You Can Pay.” Zadek told listeners the show would look under the hood of the bail system and that they would be enraged, surprised and embarrassed. How Bail Traps the Poor in Jail with Scott Shackford (2018)
The episode’s framing notes describe the discussion as covering how the cash bail system effectively penalizes poverty and undermines the principle of “innocent until proven guilty,” the economic consequences of pretrial detention, and New Jersey’s transition toward a risk-based assessment model that uses data and improved communication instead of financial requirements. The excerpt of Shackford’s own remarks breaks off at the point where Zadek asks him for the thesis of his piece, so the guest’s argument is not preserved in the source. How Bail Traps the Poor in Jail with Scott Shackford (2018)
Timbs v. Indiana and the Excessive Fines Clause
A December 2018 episode was devoted to Timbs v. Indiana, heard by the Supreme Court about a week before the broadcast. Zadek introduced the story of Tyson Timbs, a low-level drug dealer whose metal-tipped boots, worn on the factory floor, led him down a road to change the interpretation of the Constitution and to extend the reach of the Eighth Amendment. Timbs was represented up the judicial ladder from the Indiana state courts to the Indiana Supreme Court to the United States Supreme Court. Awaiting the Verdict in Timbs v. Indiana (2018)
The guest was Sam Gedge, an attorney at the Institute for Justice, which Zadek described as his super favorite organization beyond all other favorites. Gedge joined IJ in June of 2015; he graduated cum laude from Harvard Law School in 2010, clerked at the Court of Appeals level in the federal judiciary, and has litigated civil asset forfeiture and licensing cases since joining IJ. Awaiting the Verdict in Timbs v. Indiana (2018)
Gedge told the story: Timbs lives in rural Indiana and has worked in a factory for a number of years. He became addicted to painkillers after a foot injury, and the addiction escalated to heroin. In 2012, after his father died, he received a $70,000 life insurance policy and spent about half of it on a new car. A few months later, an encounter with someone who turned out to be a confidential informant led him to sell a very small amount of heroin to people who turned out to be undercover police officers. He was convicted of a low-level drug offense, and police in Indiana seized his new car. Awaiting the Verdict in Timbs v. Indiana (2018)
Zadek asked how law enforcement could simply seize the car. Gedge called civil forfeiture one of the greatest threats to property rights in the nation today, allowing state, local and federal governments to take cars, cash and homes often without even convicting or charging a person with a crime. It has a long history dating back to the 19th century with pirate ships and smugglers, but in recent decades it has exploded. Zadek raised “equitable sharing,” describing the federal government as a behind-the-scenes cheerleader and calling the process policing for profit. Gedge agreed, saying one of the most dangerous aspects of civil forfeiture nationwide is that the police and prosecutors deciding whether to take your property are often the same agencies that stand to benefit financially, with the money going straight back into the coffers of the agencies responsible for the seizures. He explained that where states have created checks on the worst abuses, the federal government offers a work-around: local or state police can hand the money to the federal government, which proceeds under more lenient federal procedures and funnels much of the money back to those same agencies. Awaiting the Verdict in Timbs v. Indiana (2018)
The constitutional question turned on the Excessive Fines Clause. Gedge laid out the Eighth Amendment’s three separate protections: the protection against cruel and unusual punishments, familiar from capital cases; the right to be free from excessive bail; and the right to be free from excessive fines—protection against the government imposing disproportionate, crippling economic sanctions. In Timbs’s case, the trial court said that taking his most valuable piece of property was so disproportionate to his criminal offense that it was an excessive fine violating the Eighth Amendment’s Excessive Fines Clause, and the intermediate Indiana court agreed. The Indiana Supreme Court then took what Gedge called a really weird turn: it said it did not care whether taking the car would be an excessive fine under the Eighth Amendment, because the US Supreme Court has never actually told us that the Excessive Fines Clause applies to the states at all. Awaiting the Verdict in Timbs v. Indiana (2018)
Zadek supplied the history. The Bill of Rights was a barrier against the federal government, and it was pretty clear that it did not apply to the states when drafted and enacted. The 14th Amendment, one of the Civil War amendments, applied the Bill of Rights to the states, but the question arose whether it applied all of the rights or only some. Since its enactment the Supreme Court has decided which specific rights apply to the states—obvious ones such as freedom of speech, the exercise of religion, and the right to bear arms more recently in the Heller case—but the Excessive Fines Clause, one of the three prongs of the Eighth Amendment, had never been found to apply or not to apply to the states. Gedge called this a great capsule summary and described the Supreme Court’s “selective incorporation” process over the past 80 years or so: a right-by-right look at the first eight amendments to determine whether each right is so fundamental to our legal tradition and Anglo-American heritage that it is incorporated into the 14th Amendment and applies to state and local authorities as well as the federal government. Awaiting the Verdict in Timbs v. Indiana (2018)
Bail reform in New York
In an April 2022 episode, Zadek returned to bail, calling it a concept that has been part of Anglo-American jurisprudence since the Magna Carta and specifically provided for in the Eighth Amendment, where the Constitution warns that excessive bail shall not be assessed—not, he allowed, the exact words, but the concept. The founders knew about bail and cared about bail, he said, because the opposite of bail is incarceration, the deprivation of liberty, probably the most powerful and serious power government has. Bail decisions occur early in the criminal justice process, before anyone has been convicted; conviction requires due process and all the safeguards of liberty ingrained in the Constitution and the statutes. Zadek also noted that bail is an area of great agreement between libertarians and the progressive left, and perhaps a divergence between libertarians and the New York Post and those who support its values. Checking in on Bail Reform (2022)
The guest was Joe Lancaster, an associate editor at Reason, who had reported on bail reform in New York City. Lancaster said that in about mid-2019 the state legislature, solidly controlled by Democrats, was debating priorities for the 2020 budget and implemented a bail reform. In this instance it concerned the cash bail system, in which a person accused of a crime goes before a judge who decides whether they may leave before trial, must stay in prison, or may get out by forking over money to incentivize their return. Zadek stressed the core purpose of bail: it is not punitive and not to protect anybody; it is mechanical, like a security deposit—hold my car keys, hold my driver’s license, hold my money, to be sure I come back. Checking in on Bail Reform (2022)
Lancaster described the mechanics: some people are released on their own recognizance, while in a cash bail system the court tends to require some sort of skin in the game. Those who cannot afford the amount may spend weeks, months or longer in jail awaiting trial, which falls on people with lower incomes who do not have five or ten thousand dollars to get out. New York’s reform, which took effect January 1, 2020, designated a lot of charges—nearly all misdemeanors and most non-violent felonies—as ones to which cash bail would not apply, so that for a lower-to-mid-level misdemeanor the judge had no authority to set a bail amount and the defendant was released on some other circumstance. Checking in on Bail Reform (2022)
Lancaster then described the backlash. When the reform went into effect, there were certain things, including a couple of anti-Semitic attacks in New York City that got people riled up; two months later came COVID lockdowns, and that summer racial justice protesting in major cities, amid a rise of violent crime across the country including New York City. Within a few months the administration was leaned on to defang the reforms, and it expanded some of the crimes where bail could be applied—the state got cold feet on that part of it. Checking in on Bail Reform (2022)
Across episodes: bail and the amendment’s clauses
The topic recurs across three episodes, and the treatment shifts with the forum. In July 2018 Zadek and Shackford argue the bail clause as a matter of systemic principle—freedom that can be purchased, and New Jersey’s move to risk-based assessment—while the excerpt of Shackford’s own argument breaks off before he states his thesis. In December 2018 the same amendment is litigated rather than debated: Gedge carries the Excessive Fines Clause to the Supreme Court through Timbs v. Indiana, and the question becomes whether the clause applies to the states at all. By April 2022 the bail clause is a matter of state legislation and political backlash, with Lancaster reporting New York’s 2020 reform and its partial rollback. What changes between the earlier and later bail episodes is the level of government in view—from the general critique of cash bail to a specific state’s enacted reform and its retreat—while the incorporation question raised in the Timbs episode is not revisited in the later bail discussion. How Bail Traps the Poor in Jail with Scott Shackford (2018) Awaiting the Verdict in Timbs v. Indiana (2018) Checking in on Bail Reform (2022)
What the sources do not cover
The excerpts do not state the outcome of Timbs v. Indiana or which way the Supreme Court ruled on incorporating the Excessive Fines Clause. They do not give the details of New Jersey’s risk-based assessment model beyond the framing note, nor the terms of the New York legislation beyond its effective date and the categories of charges it covered. The Shackford excerpt ends before the guest’s thesis is stated, and the April 2022 excerpt breaks off as Zadek turns to preventive detention. The sources also do not state the full text of the Eighth Amendment, offering only the clauses as the speakers paraphrase or quote them.