Pretrial detention is the practice of holding an accused person in jail before conviction. In the excerpts, guests and host Bob Zadek examine how the American bail system determines who remains detained and argue that cash bail often functions as a penalty for poverty rather than a tool for public safety.
The scale and legal framework
Robert Alt of the Buckeye Institute told Bob Zadek that most people in Ohio jails have not been convicted of anything. Alt said that 57% on average of people sitting in Ohio jails are awaiting trial, and that while some may have been denied bail, most are there because they cannot meet the cash bail requirement for release. Alt noted that the Supreme Court has found 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 is not the best way to achieve either goal. Robert Alt of the Buckeye Institute: Power to the States (2017)
Bob Zadek framed the issue in a separate episode by invoking the Eighth Amendment, quoting its command that “Excessive bail shall not be required.” He said the founders considered bail important enough to include in the Bill of Rights and described a system where freedom can be purchased. How Bail Traps the Poor in Jail with Scott Shackford (2018)
The human cost
Scott Shackford told Bob Zadek that studies show just three days in jail begins to affect a person’s life and economic situation. He described a retired cab driver in his 70s in San Francisco who was arrested after bringing a gun to confront partying neighbors. The prosecutor filed charges including attempted murder, and the judge set bail at $625,000, calling him a flight risk because of the potential sentence. The man spent nine months behind bars awaiting trial, was exonerated by a jury, but lost his taxi medallion and nearly faced eviction. How Bail Traps the Poor in Jail with Scott Shackford (2018)
Shackford said people trapped behind bars are more likely to be convicted, more likely to accept bad plea deals than they would get if free, and that for low-level charges they may effectively serve their time while waiting for trial, leaving no point in fighting. Bob Zadek summarized the core injustice: the defendant is innocent, and the only difference between him and others is that he has less money.
Alt offered a contrasting case from Ohio. Marcus Brown, a young man in the Dayton area, was picked up for trespass after his clothing violated a dress code on the public transit system. He was held on $150 bail, and his mother took out a vehicle title loan to raise the money, a process that took eight days. Alt contrasted this with a Pennsylvania case in which a man accused in a potential homicide was able to post $100,000 bail and then killed someone during the pretrial period. Alt argued that the ability to post $100,000 does not mean a person is not a threat or a flight risk. Robert Alt of the Buckeye Institute: Power to the States (2017)
Risk assessment as an alternative
Alt said the Buckeye Institute advises using actual risk assessment rather than monetary bond payments to decide who stays in jail. He said even a short time in jail creates a high risk of job loss, which in turn raises the risk of future crime by removing economic opportunities. He described experiments in Lucas County, Ohio, where risk assessment toolkits tailored release to the individual’s offense and likelihood of causing problems. Alt said 19% more people showed up for court and less crime was committed by those awaiting trial. He said the institute was expanding to Cuyahoga County and hoped to go statewide. Robert Alt of the Buckeye Institute: Power to the States (2017)
Alt also described political obstacles. He said bail bondsmen are a massive lobby against reform and that he understood Dog the Bounty Hunter had spoken out against such reforms. He said prosecutors are frequently reluctant, though on mens rea reform they ultimately agreed to the reforms formulated. Alt said the difficulty is getting past the initial knee-jerk tough-on-crime response, and that legislators often create new crimes after highly publicized incidents even when ample laws already exist. Robert Alt of the Buckeye Institute: Power to the States (2017)
New Jersey’s algorithm
Joe Lancaster told Bob Zadek that New Jersey undertook an aggressive reform over roughly three to four years, developing an algorithm that plugs in variables called risk factors. These include the defendant’s age at arrest, whether the arrest is for a violent crime, whether other charges are pending at the time of arrest, and prior convictions. The algorithm produces a recommendation for the judge, and in many cases the recommendation is against pretrial detention. Lancaster said the recommendation is not binding and the judge can depart from it based on other circumstances. Checking in on Bail Reform (2022)
Lancaster said New Jersey offers alternatives to detention such as ankle monitors and check-ins with the court, similar to parole check-ins. He said there has not been a huge increase in people failing to appear, partly because check-ins provide an opportunity to remind people of court dates. He said rates of pretrial detention have plummeted and crime has not gone up in turn. Bob Zadek compared the algorithm to a credit score or FICO score, arguing that algorithms assist the court by aggregating factors that statistics show predict whether someone will show up for trial, and that in New Jersey the judge still decides. Checking in on Bail Reform (2022)
Across episodes: the same question, different answers
The excerpts show the same question argued across episodes: how should the state decide who remains detained before trial? In the 2017 episode, Robert Alt advanced risk assessment as an alternative to cash bail, citing Lucas County’s results and the Buckeye Institute’s push for statewide reform in Ohio. In the 2018 episode, Scott Shackford focused on the economic devastation of cash bail and the coercion of plea deals, with Bob Zadek framing the issue through the Eighth Amendment. In the 2022 episode, Joe Lancaster described New Jersey’s algorithm-based system as a working model, reporting that pretrial detention rates fell without a rise in crime. The later treatment shifts from diagnosing the problem and proposing reform to describing an implemented system and its measured results, with Lancaster supplying the concrete mechanism—risk factors, recommendations, check-ins—that earlier episodes described only in general terms.
What the sources do not cover
The excerpts do not state the outcome of any litigation challenging cash bail, nor do they name specific statutes or bills enacted in Ohio or New Jersey. They do not provide the full text of the Eighth Amendment beyond the phrase quoted, nor do they describe how the New Jersey algorithm was built or validated. The excerpts also do not state whether the Buckeye Institute’s proposed reforms were adopted statewide in Ohio.