The principle as a benchmark
On The Bob Zadek Show the phrase “innocent until proven guilty” is treated as a first principle against which specific institutions are measured. Bob Zadek, an attorney and the show’s host, frames the principle as a standard Americans take pride in, and guests invoke it when describing practices they regard as departures from it. The episodes do not debate whether the principle is sound; they argue over where it has been eroded and what reform would restore it. War – A Rationale For Extra-Constitutional Power? (2013)
Post-9/11 statutes and the burden of proof
In a discussion of foreign policy and the expansion of governmental power under the cover of war, Bob Zadek asks Chris Preble of the Cato Institute to describe the statutes passed after 9/11 that gave the government powers it did not have before. Preble names the USA PATRIOT Act, which he says allowed a range of surveillance and investigatory powers to be handed to the federal government under the guise of preventing future terrorist attacks. Preble says the Act shifts the burden of proof from the government to the individual, and that the classic principle of innocent until proven guilty has been eroded in some instances under it. War – A Rationale For Extra-Constitutional Power? (2013)
Preble also names the Authorization to Use Military Force, the original authorization to go into Afghanistan, which he describes as fairly specific to the events of 9/11 and to the individuals involved in planning and executing that attack. He notes that more than eleven years have passed since the law was passed, and that individuals who were seven or eight years old at the time of the attacks are somehow being targeted under that authority. His preference is for the authorization to be sunsetted after combat operations in Afghanistan draw to a close, with a year or two afterward to allow it to wind down. He further names the creation of the Department of Homeland Security, established after 9/11 to ostensibly keep the country safe from terrorism, which he calls at best a mixed bag; he cites a former colleague, David Rittgers, who wrote a paper for Cato calling for abolishing the department. War – A Rationale For Extra-Constitutional Power? (2013)
Preble’s argument rests on a comparison of threats. He says libertarians take the Constitution very seriously, and that the Cato Institute has handed out or sold something like five million copies of the Constitution over its history. When he hears people say the Constitution was designed for a different era, when the threats were quite different, he agrees — but he says the threats were much greater when the Constitution was created in 1787, and that the threats of today pale in comparison. He adds that he served in the US Navy in the waning days of the Cold War, and that the threat posed by the Soviet Union was serious and legitimate, yet the country managed to defend itself without resorting to a wholesale violation of civil rights and civil liberties. The real excesses of that period, he says, are looked back on now as a great mistake and as a stain on our history. War – A Rationale For Extra-Constitutional Power? (2013)
Bob Zadek closes the segment before a break with a quotation from the US Supreme Court case Reed v. Covert, which he reads as rejecting the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights, and as holding that the United States is entirely a creature of the Constitution whose power and authority has no other source. War – A Rationale For Extra-Constitutional Power? (2013)
Cash bail and the purchase of freedom
A 2018 episode with Scott Shackford of Reason magazine is built around Shackford’s article “Innocent Until Proven Guilty, But Only If You Can Pay.” Bob Zadek introduces the subject by asking how Americans would feel if they lived in a country where freedom has been so cheapened that it can be bought, and says the country has become one where freedom for many Americans can only be purchased. He notes that bail was important enough to the founders to have found its way into the Bill of Rights as part of the Eighth Amendment, which states that excessive bail shall not be required. How Bail Traps the Poor in Jail with Scott Shackford (2018)
Zadek sets out what he calls the purpose of bail: to make sure the defendant shows up for trial, not to punish or incarcerate, and therefore the only issue before the court is whether the defendant is a flight risk. If the defendant is not a flight risk, he says, no money should be required — but courts go beyond that. He also describes a bias in judicial behavior: judges are human beings who fear a headline about a released defendant who committed another bad act, so a judge has a profound bias to set high bail when bail may be inappropriate, because the judge will never have a headline for setting bail too high but might have one for setting it too low. How Bail Traps the Poor in Jail with Scott Shackford (2018)
Zadek notes that bail reform measures have drawn bipartisan support, naming Senator Rand Paul and Senator Kamala Harris as having joined forces on bail reform measures, and says the show will discuss those measures along with protective detention. How Bail Traps the Poor in Jail with Scott Shackford (2018)
New York City’s reform and its results
A 2022 episode with Joe Lancaster examines a study by the New York City Comptroller on the effects of bail reform. Bob Zadek summarizes the reform as making it easier to release people who could not come up with the money, releasing them back into society pending trial or disposition. Lancaster reports that across the three complete years 2019, 2020 and 2021, comparing pre-reform and post-reform numbers, there was a significant lowering in the number of people detained before trial, and no corollary rise in crime among that group. He cautions that other factors were at play, including roughly a year and a half to a year and nine months of COVID, during which there were far fewer hearings for various things, but says that on a granular basis the people released who likely would not have been released beforehand did not go on to reoffend in large numbers, with the reoffending rate about equivalent before and after. Checking in on Bail Reform (2022)
Lancaster identifies a troubling counter-current: far fewer people were assigned cash bail amounts, but the amount of money assessed and collected increased significantly, with the average bail amount approximately doubling in some cases. Only about half of the people who had bail set were ever able to secure bail and get out, and many of those who did still spent a decent amount of time in jail. The report concluded that when the reforms functioned as intended — when fewer people were given dollar amounts they had to provide to get out of jail, and when those people were allowed to leave on their own recognizance — the reforms worked, and that if anything they need to be strengthened and continued as written. Lancaster says the newest weakening of those reforms runs contrary to that report. Checking in on Bail Reform (2022)
Zadek highlights a provision of the New York City bail reform package that for the first time required courts to take into consideration the ability of the alleged perpetrator to come up with the money — the ability to pay. He describes the abuse the provision addressed: the concept that a person is innocent until proven guilty unless he does not have any money, in which case he is stuck in jail. He notes that the accused has only been accused and not convicted, yet is stuck in jail simply because he lacks the wherewithal, from himself or friends and relatives or a bail bondsman, to come up with the bail. Checking in on Bail Reform (2022)
Zadek cites studies discussed on an earlier show finding that low-income people accused of a crime who cannot make bail must stay in jail, and often serve more time awaiting trial than they would have served had they been convicted — in effect doing jail time without a conviction. He describes the downstream damage: an hourly-paid worker accused but not convicted sits in jail, cannot show up for work, is fired from his job, his family cannot pay the rent, and he ends up with a conviction on his record — his life severely and permanently damaged because at the first stage he did not have the money to make bail. Checking in on Bail Reform (2022)
The presumption extended to regulation
In a 2021 episode with Adam Thierer, the presumption of innocence is carried out of criminal law and into the regulation of innovation. Bob Zadek asks Thierer about remedies including reverse presumption, sunsetting regulations, and the parity provision. Thierer describes what he calls the Innovator’s Presumption: the burden of proof in law should be reversed from the position that innovation and entrepreneurship are presumed harmful until proven innocent. That, he says, is not the right standard; it should be just as it is in criminal law, where you are innocent until proven guilty. He says far too many policies are rigged against risk-taking, either because a business is born into regulatory captivity or because the law does not like innovators. Finding Freedom in the Permission Society (2021)
Thierer notes that there have been attempts in the past, including by regulators themselves, to write into law a provision stating that any person or party who opposes a new technology or service shall have the burden to demonstrate that the proposal is inconsistent with the public interest or public welfare. The point of switching the burden, he says, is to tell the world around an agency or a law that it is safe to innovate — other people have to make the case against you, and you have the green light rather than the red light. He says the Innovator’s Presumption could be written into any policy governing new innovation and technology. Finding Freedom in the Permission Society (2021)
Thierer also describes the parity provision, which addresses what he calls the level playing field problem. Incumbents and special interests defending the status quo, he says, argue that new entrants who want to play by a different set of rules create an unlevel playing field, and therefore everyone should play by the old rules, with the old burdensome taxes and regulations. Incumbents say this not because they like the taxes and regulations but because they have learned to live with them and know the new entrants cannot. The parity approach, Thierer says, levels the playing field in the direction of greater freedom rather than burdensome rules and taxes — treating everybody the same as the new innovator and giving them more permission to innovate. He says this would solve problems with occupational licensing, permitting systems, and other regulations at the federal level. Finding Freedom in the Permission Society (2021)
Bob Zadek connects the sunsetting idea to Thomas Jefferson, who he says believed every law had to sunset in twenty years — one generation — because it was immoral for one generation to bind another that did not get to vote on whether to be bound. Zadek tells Thierer that Jefferson beat him to the idea, and that he does not mind Thierer shortening Jefferson’s twenty years to two. Finding Freedom in the Permission Society (2021)
Across episodes
The topic recurs across four episodes spanning 2013 to 2022, and the treatment shifts with the subject matter rather than developing a single argument. In the 2013 episode Chris Preble applies the principle to post-9/11 surveillance and military authorization statutes, arguing the burden of proof shifted from government to individual. In the 2018 episode Scott Shackford and Bob Zadek apply it to cash bail, treating the ability to pay as the operative test of whether the presumption is honored. In the 2022 episode Joe Lancaster reports empirical results from New York City’s reform, and Bob Zadek frames the ability-to-pay requirement as the reform that addressed the abuse. In the 2021 episode Adam Thierer extends the presumption from criminal law to the regulation of innovators, arguing the burden of proof should be reversed in policy governing new technology. The later bail episodes supply data and a specific reform where the earlier ones supply the principle and its abuse.
What the sources do not cover
The excerpts do not state the holding of Reed v. Covert beyond the passage Bob Zadek reads, nor which amendment the case turned on. They do not give the full text or enactment dates of the USA PATRIOT Act, the Authorization to Use Military Force, or the New York City bail reform package, and the Shackford and Thierer segments break off before the guests develop their theses. No excerpt states the outcome of the bail reform measures Zadek attributes to Senators Paul and Harris, or the contents of the Comptroller’s report beyond what Lancaster summarizes.