Checking in on Bail Reform
2022-04-11 · Guest: Joe Lancaster (Associate Editor at Reason magazine) · 52:31
Bail reform public safety and civil liberties
Bob Zadek and Joe Lancaster discuss the complexities of bail reform, focusing on the tension between public safety and civil liberties. They analyze the data from New York’s controversial reforms and contrast them with New Jersey’s algorithm-driven approach and recent changes in Harris County, Texas.
Topics: Bail Reform, Cash Bail, 8th Amendment, Criminal Justice, Preventive Detention, Recidivism, New York Law, New Jersey Algorithm
Speakers: Bob Zadek, Joe Lancaster
Introduction and the New York Post [00:00]
Bob Zadek: Good morning, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. This Sunday and always, the show of ideas, never once the show of attitude.
I’m going to start off this morning’s show with a confession. I’m going to confess to one of my guilty pleasures that I can’t seem to avoid. As I try to inform myself on what’s going on in the world, the first thing I do in the morning when I wake up, as I wipe the sand from my eyes, is I read on my iPhone the online app for the New York Post. The New York Post is a tabloid in New York City, the oldest newspaper in the country, if I am not mistaken. That’s vaguely irrelevant to what I’m about to say.
And the Post has very short news—and news, I guess, is in air quotes—stories, although they did break the Hunter Biden laptop story, you may recall, during the last presidential election. But the New York Post, every single day, every single day, has more than one article which starts with some violent crime committed in New York City and then goes on to point out every single time how the alleged perpetrator of that heinous violent crime was arrested previously, like in the past two minutes, and was released without bail by some, in the Post’s opinion, ne’er-do-well judge.
And the Post complains bitterly, or the reporter for the Post complains bitterly each and every time, that how could this bad actor with a long rap sheet and a history of violent crime not be held by the court for the prior crime for which they were released? And had they not been released by this perhaps bleeding-heart judge—often the judge is mentioned by name—if this alleged perpetrator wasn’t released back into society, this heinous crime would not have been committed. Therefore, responsibility for this crime more or less rests either on the judge who should have imposed high or no bail, just kept the alleged perpetrator in jail until the trial, or often in the article in the New York Post, the Post finds fault with the system in general. And day after day, I am berated and start my day grouchy because of these articles, but I can’t stop reading.
The Purpose of Bail and the 8th Amendment [02:00]
Bob Zadek: The subject for this morning’s show is the topic of bail, cash bail, and the related topic of bail reform. Bail is a concept that has been around as part of our Anglo-American jurisprudence since the Magna Carta. It’s old, it’s deeply ingrained in our jurisprudence. It is specifically provided for in the Eighth Amendment to the Constitution, part of the Bill of Rights, where the Constitution warns us that excessive bail shall not be assessed. That may not be the exact words, but that’s the concept in the Eighth Amendment.
So the founders knew about bail and they cared about bail. And bail is important because the opposite of bail is incarceration. And incarceration is the deprivation of one’s liberty, probably the most powerful and serious power that government has: to deprive us of our liberty against our consent. So bail is not just something that happens in the dingy courtrooms of New York City, but it is a core concept which affects the liberty of all citizens of the country.
Therefore, it is a topic worthy of an in-depth understanding because there is so much misunderstanding about the concept of bail, under what circumstances can one be deprived of one’s liberty. After all, bail or the decision on bail occurs early in the criminal justice process. No one has been convicted of anything. They are suspected of doing something. There may have been witnesses, it may be in anybody’s mind no real doubt that this perpetrator did what the perpetrator is accused of. There may not be any real doubt on an objective basis, but still, that requires conviction, due process, all of the safeguards of our liberty that are ingrained in the Constitution and in the statutes.
So the subject of bail is as core to the subject of liberty as one can get. What is also interesting about the subject of bail is that bail is one of the—well, several, perhaps many—areas where there is great agreement between libertarians and our view of bail and those of the progressive left in our country. So here is a meeting of the minds with the progressives and perhaps a divergence of views between libertarians and, shall I say, the New York Post and those who more or less support their values and standards.
New York’s Bail Reform and the Backlash [03:57]
Bob Zadek: Recently in Reason magazine, Joe Lancaster, an associate editor at Reason, reported on the goings-on on bail reform in New York City. New York City, of course, being governed by an extremely progressive crowd, both at the New York City level and at the state level. So here is progressive government in all of its living color. And progressive governments—they are experimenting, New York City is, with bail reform. And there’s recently been some goings-on in the political system in New York City, and Joe Lancaster, this morning’s guest, was good enough to report on those goings-on. I thought, what a wonderful reason for us to see what at least one municipality and one state is thinking about bail reform, albeit a progressive state, and what can we all learn about bail in general, bail reform specifically, what is going on to, on the one hand, protect our liberties and, on the other hand, protect us from those who would do us harm. So with that introduction, Joe, thanks so much for your piece this morning and welcome to the show.
Joe Lancaster: Yeah, thanks for having me, Bob.
Bob Zadek: Now, Joe, you reported on the background for your piece, which you were reporting on—we’ll get to the Comptroller’s report in a moment—but set the stage for us, if you will. What was going on that got your attention in New York City?
Joe Lancaster: Back in about mid-2019, when the state legislature in New York, which, like you said, is pretty solidly controlled by Democrats, they were debating what needs to go into the 2020 budget, what type of legislative priorities they had for that. And one of the things that they implemented was a bail reform. And like you said, that can take any number of meanings and any number of interpretations. In this particular instance, it was the cash bail system where you are accused of a crime, you go before a judge, and the judge decides whether or not you’re allowed to leave before your trial, whether or not you have to stay in prison, or in the middle, whether you’re allowed to get out, but you have to fork over some amount of money to essentially incentivize you to come back for the trial.
Bob Zadek: Now, let’s just stop for a second, Joe, just because you made a very important point, which is the core purpose of bail. Since bail was conceived of back, as I said, in the 11th century in England, the purpose of bail is not to be punitive, not to protect anybody. It’s mechanical. It is: since you were, or since a perpetrator, an alleged perpetrator, was accused of something, well, that’s the first step. It is suspected that they did a bad act, a criminal act. Well, the trial will be sometime in the future. So the question is, what do we do with this alleged perpetrator between today, when he is before a judge or a magistrate—what do we do with that person today and sometime in the future when that person will be required to show up and to face the consequences in a trial or whatever is the next step? So bail, Joe, is simply like a security deposit. “Here, hold my car keys to be sure that I’m going to come back in a little while.” To make sure I come back, hold my car keys, hold my driver’s license, in this case, hold my money. So please, I just wanted the audience to make sure they understood the very specific purpose of bail and of that initial hearing. Please go on, Joe.
Joe Lancaster: Absolutely. Yeah, that is the key component of it, is that some people are allowed to just go home on their own recognizance. A lot of the rest of them, the court tends to require in a cash bail system some sort of skin in the game, so to speak, like you said, an incentive for you to come back. But a lot of times, if somebody can’t afford that, depending on what they’re charged with, they may end up spending time in jail for a good amount of time—weeks, months, or longer—just awaiting the trial. So this tends to fall, obviously, on people with lower incomes, people who don’t have five grand, ten grand to get out of jail.
So that was the thinking behind a lot of bail reforms, and including the one in New York State. What theirs did, which was to take effect January 1st, 2020, it would essentially designate a lot of different charges in most misdemeanors, nearly all misdemeanors and most non-violent felonies, that cash bail was not—would not apply to them. So you go before a judge for something, a lower-to-mid-level misdemeanor, the judge—it’s not even in their hands to give you an amount for bail. You were just released on some other circumstance other than you having to fork over cash to get out of jail.
When that actually went into effect, there were certain things, like I believe there was a couple of anti-Semitic attacks in New York City that got people kind of riled up. And then, of course, two months after it went into effect, we have COVID lockdowns. That summer, we have racial justice protesting in major cities, and in the midst of all that, we have a rise of violent crime all across the country, but also including in New York City. And so within just a few months of the New York bail reform going into effect, the administration kind of was leaned on to maybe defang the reforms a little bit. And so it did expand some of the crimes where bail could be applied. They kind of got cold feet a little bit on that part of it.
Preventive Detention and Minority Report [07:18]
Bob Zadek: So what happens is there was a rise in violent crime. There was the conclusion that a contributing factor in the rise of violent crime was the violent crime was committed by recidivist perpetrators who were arrested for one crime, could have been subject to high bail requirements which they couldn’t have met, which would have meant continued incarceration, and therefore they would have remained in jail and not been released and therefore not committed another crime. There was some assumed relationship between the bail reform contribution to violent crime and the increase in violent crime.
And of course, if you favor, if you are conservative in this regard and you favor “tough on crime”—that was a phrase that was prominent for many, many years, politicians ran on that issue when crime, violent crime, was increasing across the country—there was are you aggressive in and tough on criminals, and that became a very successful way to run a political campaign. So those who favor tough on crime simply asserted that a contributing factor was bail reform was releasing these people.
Now, what is interesting is that the dishonesty in that argument, Joe—and I’d like you to speak to this if you would—the dishonesty of that argument is that it assumes that the likelihood that a perpetrator is going to commit another crime if released is an element in deciding whether to grant bail. And how accurate, Joe, in your experience, in your opinion, should a judge consider tendency to commit another violent crime in a decision? After all, this citizen before the judge right now is only suspected of committing a crime. So should we be allowed to keep people in prison because they are more likely to commit another crime? In effect, the phrase is called “preventive detention.”
Joe Lancaster: Yeah, and I mean, ultimately, that is kind of one of the stickier parts of this. Because like we said, the stated purpose of bail, the granting of bail or declining of bail, doesn’t have anything to do with whether or not someone reoffends. In fact, in the New York law, it specifically left out the consideration of whether or not someone is likely to offend while they’re out on bail. The judge is instructed to take into account someone’s ability to pay bail if they were assigning it, but it at no point did it specify whether the judge is to consider someone’s likelihood to reoffend.
That’s kind of an interesting consideration. I think bail is handled on state and local levels, it’s not mandated from the top down. And so I think that there’s a good reason for that. It gives a lot more emphasis on individual cases, individual populations of people. I would feel uncomfortable dictating one way or the other whether or not we should consider someone’s likelihood to offend, just in the sense that in a lot of cases, judges are able to take someone’s prior convictions into account. I think that could be illustrative, but the preventive, the kind of Minority Report pre-crime element of it makes me feel a little bit uncomfortable in a lot of cases.
And that actually was one of the things that New York ultimately did loosen the reforms in 2020. And just within the past few days, between when I wrote the piece and when we’re speaking now, they’ve done so again. The New York’s new governor, Governor Hochul, has kind of championed and pushed through new reforms to the reforms, so to speak. And in this case, not only initially they had made it so more charges were able to—bail was able to be applied to them, and now they’ve expanded it so that judges can consider things like past gun use, past instances of violence, things like that, in whether or not to assign bail.
Data on Recidivism and Crime Rates [08:53]
Joe Lancaster: But there was the thing that I wrote about in the piece was there was a report by the New York City Comptroller who looked at the data from 2019, 2020, and 2021. So the full year before the reforms went into effect and the two years after they went into effect. And as far as recidivism, as far as people who had been arrested, gotten out on bail, and reoffended, the rates both before and after were nearly identical, like between 3 and 5%. So I have no doubt that when you look at the New York Post in the morning, I’m sure there is a salacious and heartbreaking story every day, but the data shows that a decline in instances of pretrial detention, there’s not been any sort of uptick in people reoffending after getting out on bail in New York City.
Bob Zadek: Pretrial detention is an interesting subject. And while the public, and certainly using as my straw man the universal approach of the New York Post in reporting on these pieces, it complains that dangerous perpetrators are released back into society. And you made reference to Minority Report. That was a Tom Cruise movie some years ago where the premise of the movie was society was at a point that it was able to predict who was likely to commit crimes in the future. And it went about arresting you because you, being a citizen, because you had a high propensity or likelihood to commit a crime in the future.
Kind of an intriguing topic. Let us assume in the premise of the movie that the predictions were reasonably accurate. Does that strike us as being fair? Is that an appropriate use of the government to statistically say you are highly likely to commit a crime in the future, even if it’s not your present intention, and therefore we are going to protect society from you doing that bad act by arresting you and by doing whatever we can to make sure you don’t commit the crime? Well, that has to strike most of us as being offensive and violative of everything we stand for. And certainly that’s how I feel.
Well, if you feel that way about the premise of the movie Minority Report, then you have to feel that way about preventive detention, where a judge is saying, “I am going to hold you in jail because you may have committed a crime now, but the reason I’m going to keep you in jail is because I think, based on your rap sheet and your record, you’re highly likely to commit another crime. So I’m going to keep you in jail solely because I want to prevent you from committing that crime in the future.” The two concepts are almost identical. So we have to suppress that gut feeling we have: how can a judge release this individual with a propensity for violence into society? Clearly the individual is going to do it again. And we have that visceral reaction. Well, if you have that visceral reaction, you support the premise of the Tom Cruise movie Minority Report, which I don’t think many people support. So preventive detention is not prohibited. Judges are allowed, indeed often encouraged, to consider propensity to commit a crime in the future as a consideration on whether to find the offense bailable, that is, you can go back into society if you put up the money, or not.
Do you recall, Joe, if the New York City bill expressed or the New York State bill, sorry, expressed an statutory opinion on whether or not judges could consider propensity to commit a crime in the future as a consideration on whether to find the offense bailable?
Joe Lancaster: It definitely considers past gun use and past violence as kind of a corollary for likelihood to reoffend while out on bail. And that was one thing that the New York lawmakers who were pushing for the newer reforms cited was people reoffending while out on bail, basically people who had been detained for violent crimes and committed violent crimes while out on bail. That was one of the things that was cited as there was an increase in that over the past year and a half to two years. But there was a—I saw one researcher who looked at the data and said, “Well, you look at the data, that is true. There was an increase in violent offenders committing violent crime while out on bail, but if you zoom out and look at it in context, that’s not the whole of the issue. It’s also the case that violent crime went up among a lot of different—violent crime went up in general during that time in New York City as well as a lot of other places across the country.”
So it’s not the case that violent crime went up solely among people out on bail. It went up kind of all over the place, unfortunately. It’s kind of like when people say, “Well, New York City implemented stop-and-frisk in the ’90s and crime went way down.” Well, yeah, it did. It also went down a lot of places that didn’t have stop-and-frisk. So that’s not the entire story. Looking at the thing as a whole, there’s other factors at play. You cannot make the case based on the data that the inability of judges to look at someone’s past criminal or past violent criminal behavior when determining whether or not they’re allowed to get out on bail—you can’t make the case based on the data that that is the thing that led to an increase in violent crime in New York City.
The Economic Impact of Cash Bail [10:42]
Bob Zadek: The economist explains what Joe has said as “correlation is not causation.” The fact that you can see a behavior between two independent events doesn’t mean one has caused the other or results from the other. It’s just all you know for a moment is a correlation. The two statistics behave in concert, but you don’t know that one caused the other. That’s the economic principle behind what Joe has just explained.
Now, Joe, specifically the New York City Comptroller, who did a study and he studied the effects of the bail reform. As I said, the bail reform basically, to summarize it, it made it easier to release people who couldn’t come up with the money, to release them back into society pending their trial or disposition, plea bargaining or whatever, in a courtroom. And what did the—which is why you wrote your article—what did the Comptroller, as you had mentioned very briefly earlier in the show, what did the Comptroller conclude and therefore what are the lessons from New York City’s bail reform that you think we can take from the Comptroller’s report?
Joe Lancaster: Sure. Yeah, looking at the data, like I said, from the past three complete years, 2019, ‘20, and ‘21, between the pre-reform numbers and the post-reform numbers, there was a significant lowering in the number of people who were detained before trial, and there was not a corollary rise in crime among that group of people. Of course, there were other factors at play at that time. You had essentially a year and a half or a year and nine months or so of COVID, and so in the early days of that, there were a lot fewer hearings for various things. But on an actual granular basis, the people who were released who likely wouldn’t have been beforehand did not go on to reoffend in large numbers. Like I said, the reoffending rate was about equivalent before and after.
The thing that was a little bit troubling, though, is that a lot fewer people were assigned bail, cash bail amounts, but the amount of money that was assessed and collected increased significantly. So even though fewer people were given cash amounts to secure bail, those amounts tended to be much higher. I think in some cases they nearly—the average bail amount during that time approximately doubled. And so only about half of people who had bail set were ever actually able to secure bail and get out, and a lot of those who did still spent a decent amount of time in jail. So one of the things that the report concluded based on that is that when the reforms functioned as intended, where fewer people were actually given dollar amounts that they had to provide to get out of jail, when those people were allowed to leave of their own recognizance, the reforms worked. And the report said that if anything, those reforms need to be strengthened and continued and followed the way that they’re written. And so this newest weakening of those reforms is kind of runs contrary to that report.
Bob Zadek: And what’s also important is in the New York City bail reform package, the one which the Comptroller was reporting upon, it for the first time required courts to take into consideration the ability of the alleged perpetrator to come up with the money, that is, ability to pay. Because one of the clearest abuses was the concept was, “Well, you’re innocent until proven guilty unless you don’t have any money.” In which case you’re stuck in jail. Remember, you have only been accused but not convicted, and you’re stuck in jail simply because you don’t have the wherewithal from yourself or friends and relatives or a bail bondsman to come up with the bail.
And there have been lots of studies—we had discussed this years ago in an earlier show—where you take low-income people accused of a crime, cannot make bail, they therefore have to stay in jail because they cannot make bail, and they often will serve more time awaiting trial than they would have served had they been convicted. So they in effect do jail time even though they haven’t been convicted. And even worse than that, just imagine if you will, you are a low-income individual, hourly paid job, must show up for work, you are accused but not convicted of a crime, you’re stuck in jail, your family cannot pay the rent because you’re not earning, you get fired from your job, you now have—and when you get convicted, you now have a conviction on your record. And just imagine how your life is severely, permanently damaged simply because at the first stage you didn’t have the money to make bail. That has to offend most of us. And therefore that was the—one of the, I think, important healthy reforms that the New York State bill made, which requiring judges to consider ability to pay.
The Bail Bonds Industry [12:29]
Bob Zadek: Now, let’s just talk just a bit, Joe. It’s not the subject of the show, but the bail system. The bail system itself requires you, being the alleged perpetrator, to put up security to assure you’re going to show up for trial. And the security can be a mortgage on your house, it can be cash, it can be another individual vouching for you and they’re putting up their property. Or there is an industry: the bail bonds industry. Tell us very briefly—we’re not going to drill down too deeply—how that all works. Because most people don’t have cash sitting around and they have to get a stranger, a surety, to post a bond. Just tell us very briefly, if you can, how that part of the industry of bail works.
Joe Lancaster: Absolutely. Yeah, because like you said, there is the point where you go before a judge, you plead not guilty, and if they assign a cash amount, a lot of times that’s in the thousands, maybe tens of thousands of dollars. So like you said, very few people are just going to have that lying around. And in the case that you don’t, you can go to a bail bondsman. We’ve all seen them on the side of the highway or commercials or billboards. You go to a person, if you go before a judge, you’re accused of any number of crimes, theft or something like that, the judge says, “Okay, well, you can get out on $20,000 bond.” You don’t have $20,000. You can go to a bail bondsman and the bail bondsman might say, “Well, I can post that for you for—it’s usually around 10% of the total.” So at that point, your two options are either you come up with the $20,000, you write a check, cash, however, to the court, they hold that $20,000 until the end of the trial, then you get it back. Or you go to the bail bondsman, you give him two or three thousand dollars, he puts up the money for you, but you don’t get that money back.
So if you don’t have the $20,000 to essentially loan away for the duration of the trial, you can come up with the two to three thousand dollars, which for a lot of people is still a lot of money, and you just give it away to somebody who, unless you do end up running, doesn’t really do anything. They secure your release, but other than that, that’s their only job. Because the bail bondsman only comes in after that if you decide to leave, and then of course it’s their job to track you down because then their money’s on the line. But I mean, yeah, in this equation, all they’ve done, you’ve given them several thousand dollars and they’ve secured your release on cash, but that’s it. They’re not providing you a service like the public defender is.
Bob Zadek: Now, no surprise, but the bail bonds industry of course does not support bail reform. It’s bad for business. And in once again an interesting alliance, about three or four years ago, Google and Facebook somehow got wind of the bail industry and there was a period of time that Google and Facebook, working with of all things Koch Industries—we all know that many people on the left consider Koch Industries and when both were alive, the Koch brothers were pariahs on the left—but in this case, it was Koch Industries and Google and Facebook and civil rights organizations that joined together and persuaded Google and Facebook not to accept advertising from bail bondsmen. They just felt that industry was prying too much on low-income people. So once again, an alliance of sorts between those on the left and at least the libertarian folks on the right to join forces against the abuses of the bail system. People aren’t generally aware of that. It was an interesting alliance for a while.
Joe Lancaster: Oh, no, I was just agreeing on that, that it is indeed an interesting alliance to kind of upend a lot of prior people’s prior assumptions.
New Jersey’s Algorithm-Based System [14:41]
Bob Zadek: Now, on the subject of bail reform, so we have to ask ourselves, well, okay, we can’t consider ability to pay, judges are discouraged from resorting to preventive detention, that is, denying bail and keeping people incarcerated before conviction because they have, in the opinion of the judge, a propensity to commit another crime. So we have this societal issue of, well, okay, we can’t consider ability to pay, we can’t consider “bad actor” in general, propensity to commit crime. So how in the world, what do we do, what does good policy dictate as to what we do about how we decide what to do with alleged perpetrators, not yet convicted, in the period of time between their initial arrest and the trial or disposition?
Well, there’s been a lot of experimentation on the bail system. And Joe, I know you have looked at New Jersey right across the river from New York. And New Jersey has had an interesting and, from all accounts, successful, very different approach to what we do about alleged perpetrators between initial arrest, first visit before a judge, and trial. Tell us about the New Jersey system, what you have learned by looking at it.
Joe Lancaster: Absolutely. Yeah, in contrast to New York, New Jersey has taken a pretty interesting and kind of aggressive reform of its own over the past, I guess like three, four years now, maybe a little bit longer. They have developed an algorithm, so to speak, where they plug in different variables, which they call risk factors. It includes like the defendant’s age at the time of arrest, if the thing they’re arrested for is a violent crime, if there are other charges pending against the person at the time of arrest, and a bunch of other things like prior convictions. And based on that, it determines a recommendation for the judge. And in a lot of cases, the recommendation is against pretrial detention.
Even in those cases where it recommends against pretrial detention, they have a lot of other options for—I mean, there are other ways to keep track of someone, so to speak, without keeping them in prison. You might implement ankle monitors or things like that. But what New Jersey does is it kind of keeps them involved in the system. So you may not have to post bail to go home, but you might have to check in. You might have to, the same way that somebody is on parole might have to check in with their parole officer every now and then, somebody who is out on bail on a general bond, not a cash bond, might have to call in every once in a while and check in with the court.
And they’ve seen a lot of success in that. There hasn’t been a huge increase in people failing to show up for court because a lot of times people might forget, or they might not know what day it is. Maybe it’s their fault that they forgot, maybe it’s the state’s fault that it didn’t do a good enough job telling them when they’re supposed to be there. But having this other step where they have to check in gives a perfect opportunity for them to be like, “Oh, and by the way, we’ll see you in court on Tuesday morning.” It has had a lot of success there. Their rates of pretrial detention have plummeted over the past few years, and crime has not gone up in turn. So I mean, that’s—it’s kind of difficult to say what an ideal bail reform scenario would be, but that’s kind of having your cake and eating it too. Fewer people are having to stay in jail based solely on their inability to pay, and at the same time, they’re not seeing higher instances of crime and reoffending. Like I said, it’s based on an algorithm that they use. They plug in the different factors and it determines—it’s not binding on the judge, so there is still the ability if there’s other circumstances to take into account, the judge can still break one way or the other against the algorithm’s recommendation, but it does kind of give a scientific, data-driven basis for what fits this particular situation based on the factors at hand.
Success in Texas and Closing [17:02]
Bob Zadek: And if it offends anybody the fact that a black box is determining whether you languish in a jail cell or not, you have to allay those fears. I will remind you that so many decisions that are made about us, especially but not exclusively relating to credit—when you have a credit score which determines the interest rate you pay on your home mortgage, whether you get credit, whether you get credit cards, all that stuff—those credit decisions are made in one way or another by an algorithm in part. There is simply too much data, and decisions about who is likely to repay their debt is too complex with too many factors involved. So we are at a point in our skills that we can build and constantly improve algorithms which do a much better job based upon statistics of predicting repayment or default. So it shouldn’t trouble anybody to have algorithms assisting the court in putting together all of the myriad of factors that statistics show us will be a predictor of whether you will show up for trial or be, as they say, in the wind. And the fact is, in the New Jersey system, as Joe has pointed out, the system doesn’t decide, the judge decides. But in the judge deciding whether to grant bail and how much, it gets this rating, like a FICO score, like a credit score, to consider as an important factor. And the algorithm is apparently well enough designed that it does accomplish what it’s supposed to accomplish. So there are ways to maximize individual liberty and yet protect society.
Now, Joe, what do you see—we have only about two minutes left—do you have a feeling about whether the prospects for bail reform so that it doesn’t unfairly incarcerate people because they don’t have enough money to pay bail? Do you see movement in other states? Is there reason for optimism? Are states slow in responding? This is an opinion show, Joe, so you’re allowed to have an opinion, and your opinion counts for a lot because you have studied it more. So can you give us words of encouragement, discouragement, or the jury is still out, no pun intended?
Joe Lancaster: Nice one. I would say there is cause for cautious optimism. The effort is bearing some slings and arrows in New York, but there are other examples out there. Like I just saw within the past couple of weeks, data came out from, of all places, Texas. Harris County, which contains Houston, they have their own system that they implemented. I think it’s been a few years now, but they appointed a monitor in around this time about two years ago, and they’ve released information for the first year and the second year, which would have been just recently. And in that time, this only applies to misdemeanors, but they just very simply just streamlined the whole thing. Misdemeanors in general, they streamlined the bail hearings, they—for most misdemeanors that didn’t involve…
Bob Zadek: Joe, we have only about five seconds left.
Joe Lancaster: Ah, sucks. Well, good things. Pretrial detention down, convictions down, failure to appear down, no increase in racial disparities. Great things out of Texas.
Bob Zadek: Thanks a lot. Thanks to Joe Lancaster, associate editor of Reason, for helping us understand the issue of bail reform and bail in this country. We have blown the smoke away so there is a lot less confusion than there was even one hour ago. Thanks to all my friends out there for giving us an hour of your time this morning, and thanks to Joe for his good reporting.
Joe Lancaster: Thank you.
Bob Zadek: Have a good Sunday, everyone. I’ll be back again next Sunday. Have a good rest of the weekend.