1399: Bail Reform | Skeptical Sunday

Innocent until proven broke? On Skeptical Sunday, Jessica Wynn explains how cash bail jails half a million unconvicted Americans. Welcome to Skeptical Sunday, a special edition of The Jordan Harbinger Show where Jordan and a guest break down a topic that you may have never thought about, open things up, and debunk common misconceptions. This time around, we’re joined by writer and researcher Jessica Wynn https://jessicawynn.substack.com/! Full show notes and resources can be found here: jordanharbinger.com/1399 https://jordanharbinger.com/1399 On This Week's Skeptical Sunday, We Discuss: How roughly 500,000 legally innocent Americans sit in jail awaiting trial on any given day — not because they're dangerous, but because cash bail sorts people by bank balance rather than by risk, and only the US and the Philippines rent out freedom via commercial bail bonds. Why bail reform became political kryptonite: crime rose during COVID just as reforms rolled out, so Utah (after five months!) and Alaska scrapped theirs before the data arrived, while a $2-billion-a-year bail bond industry lobbied hard to keep freedom behind a paywall. What happens when reform survives on paper but not in practice: judges swap unaffordable bail for no-bail holds, ankle monitors widen the net, and risk algorithms trained on biased data launder old prejudices into objective-looking scores. How pretrial detention powers the plea bargain machine — with about 95 percent of cases ending in pleas, people held before trial are four times likelier to be sentenced to jail and get sentences three times longer, even controlling for charges and history. What actually works: Washington, D. C. has run without cash bail since 1992, releasing about 90 percent of arrestees (88 percent show up for court), while simple text reminders cut missed court dates 26 percent in NYC — proof that a nudge often beats a threat. Connect with Jordan on Twitter https://twitter.com/JordanHarbinger, Instagram https://www.instagram.com/jordanharbinger, and YouTube https://www.youtube.com/c/THEJORDANHARBINGERSHOW. If you have something you'd like us to tackle here on Skeptical Sunday, drop Jordan a line at [email protected] mailto:[email protected] and let him know! Connect with Jessica Wynn at Instagram https://www.instagram.com/iamjessicawynn/ (and Instagram https://www.instagram.com/NeverMetJessicas!), and subscribe to her newsletters: Between the Lines https://jessicawynn.substack.com/ and Where the Shadows Linger https://storiesbywynn.substack.com/! And if you're still game to support us, please leave a review here https://itunes.apple.com/podcast/id1344999619?mt=2&ls=1 — even one sentence helps! Sign up for Six-Minute Networking https://jordanharbinger.com/course — our free networking and relationship development mini course — at jordanharbinger.com/course https://jordanharbinger.com/course! Subscribe to our once-a-week Wee Bit Wiser https://www.jordanharbinger.com/news/ newsletter today and start filling your Wednesdays with wisdom! Do you even Reddit, bro? Join us at r/JordanHarbinger https://www.reddit.com/r/JordanHarbinger/! This Episode Is Brought To You By Our Fine Sponsors https://www.jordanharbinger.com/deals/: Xero: Find out more: xero.com https://www.xero.com/The Cybersecurity Tapes: Listen here: thecybersecuritytapes.com https://thecybersecuritytapes.com/AT&T: Get an iPhone 17 Pro for $0: att.com/iphone or visit an AT&T store for details https://att.com/iphoneProgressive Insurance: Free online quote: progressive.com https://www.progressive.com/See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

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  This episode is brought to you by Xero. That's Xero with an X. Running a small business and managing your finances shouldn't make your day more complicated. Learn more at xero.com.

• 1:28Speaker 01

  Welcome to Skeptical Sunday. I'm your host, Jordan Harbinger. Today, I'm here with Skeptical Sunday co-host, writer and researcher Jessica Nguyen. On the Jordan Harbinger Show, we decode the stories, secrets, and skills of the world's most fascinating people. Our mission on the show is to help you become a better informed, more critical thinker. During the week, we have long-form conversations with a variety of amazing folks from spies to CEOs, athletes, authors, thinkers, and performers. On Sundays, though, is Skeptical Sunday, a rotating guest co-host and I break down a topic you may have never thought about and debunk common misconceptions about that topic, such as the death industry, hypnosis, homeopathy, internet porn, diet supplements, and more. If you're new to the show, or you want to tell your friends about the show, I suggest our episode starter packs. These are collections of some of our favorite episodes on persuasion and negotiation, psychology,

• 2:13Speaker 01

  disinformation, junk science, crime and cults, and more. It'll help new listeners get a taste of everything we do here on the show. Just visit jordanharbinger.com/start or search for us in your Spotify app to get started. Today, we're talking about bail reform. This is one of those topics where half the people hear criminal justice. The other half hears crime, and everybody immediately stops listening. Hopefully, not everybody. All at once, we have to discuss public safety, poverty, due process, and who should be locked up and kept there. It's one of those topics that's right up there with teaching history accurately and maybe everyone should have healthcare in terms of controversy. So what is bail reform? Joining me to help break us out of the confusion is writer and researcher Jessica Nguyen.

• 2:51Speaker 02

  Hey, Jordan. So I wouldn't say break us out, because this system is designed to keep people in.

• 2:58Speaker 01

  That's right. Jail's already dark. So what's going on with bail? I think a lot of people probably don't even know really what this is. You pay money, you get out of jail? I don't know.

• 3:06Speaker 02

  In theory, we have a criminal justice system built on one simple idea: innocent until proven guilty.

• 3:13Speaker 01

  Very noble, very constitutional. Fireworks, Bald Eagle, Toby Keith somehow starts playing.

• 3:19Speaker 02

  And yet, at this very moment, about 500,000 legally innocent people are sitting in jail, waiting for trial.

• 3:28Speaker 01

  Right, because innocent until proven guilty. And they're waiting because why?

• 3:33Speaker 02

  Because they're poor. Bail is supposed to let you go home while you wait for court. But your freedom comes with a price tag and can depend on how much money you can get your hands on. Rich guy accused of fraud, home by dinner. Poor guy accused of stealing a backpack, jail for weeks or months. Possibly years.

• 3:53Speaker 01

  Come on, but nobody's getting years for allegedly stealing a backpack, right?

• 3:57Speaker 02

  That's exactly what happened to Kalief Browder. He was 16 years old when he was arrested in New York for allegedly stealing a backpack. He couldn't afford the $3,000 bail, so he spent nearly three years on Rikers Island, awaiting a trial that never happened. Two years after he was released, he died by suicide. He was 22 years old.

• 4:20Speaker 01

  Because he didn't have $3,000? That's legitimately insane. That is not a fair system.

• 4:26Speaker 02

  Yeah, that's why there are exactly two countries that use commercial bail bonds, where you pay a private company to front your bail money.

• 4:34Speaker 01

  And we're one of those countries.

• 4:36Speaker 02

  Yeah, we are. It's us and the Philippines. That's it. Every other developed country decided there had to be a better way.

• 4:44Speaker 01

  Right, and America, we were just like, no, thanks, we're going to monetize innocents.

• 4:48Speaker 02

  Yeah, pretty much, and that's bail.

• 4:50Speaker 01

  Okay, so this system is clearly broken if a kid can wait in jail for three years for a trial that, just before trial, and then the trial never happens, and they go, well, you aren't going to get more than this for stealing that backpack. Go on out. I mean, that's crazy. So we've since fixed this a little bit, right? That's what bail reform is?

• 5:08Speaker 02

  I wish, but no. People hate bail reform, because every time crime goes up, for literally any reason, politicians blame bail reform. Pandemic, bail reform. Economy collapse, bail reform.

• 5:24Speaker 01

  Mercury in retrograde, totally bail reform. I mean, that's, yeah, it is a convenient scapegoat, right? Because you can just say, we're letting all the bad people out.

• 5:31Speaker 02

  It's true. And crime really did rise during COVID. Bail reform also happened to be rolling out in a bunch of places. So suddenly, everyone decided bail reform must have caused the increased crime. Now everyone's pointing fingers, the data's a mess, and politicians are running away from bail reform like it's radioactive.

• 5:53Speaker 01

  Even though the current system is demonstrably jailing innocent people based on their bank account balance?

• 5:58Speaker 02

  And we're holding people longer than we used to. So in 1983, the average stay before trial was about two weeks. Today, it's closer to five. And federal data shows roughly 70% of people sitting in local jails haven't been convicted of anything. They're there for different reasons, but a huge part of that population is simply waiting for their case to be resolved. And for many, whether they wait at home or behind bars, comes down to whether they can afford bail.

• 6:30Speaker 01

  I am already angry, and we are three minutes in. Okay, so when people say bail reform, what does that actually mean? Because there are headlines about everything from eliminating cash bail to algorithms decide your fate, and it sounds like the choices are Sweden or like The Matrix. I don't know. This is crazy to me.

• 6:49Speaker 02

  Yeah, I mean, it is a spectrum. So on one end, some places like Illinois eliminated cash bail entirely for most offenses. As of 2023, Illinois basically said, you know, we're not making freedom before trial depend on whether you can afford it. Judges can still detain people if they're a genuine danger or if they're, you know, a flight risk, but it's not about money. And different states try different versions. New York took a middle approach. In 2020, they said cash bail is only allowed for violent felonies and serious charges. So most misdemeanors and nonviolent felonies, there's no bail.

• 7:30Speaker 02

  And some places just require judges to consider whether someone can actually afford the bail they're setting. Like, hey, Judge, you know, maybe don't set bail at 50 grand for someone who makes $20,000 a year.

• 7:44Speaker 01

  Okay, but there are obviously a lot of people I don't want walking out of court. Somebody accused of murder, somebody who threatened a witness, somebody who's already taken off once, like the guy I caught breaking and entering and couldn't be bothered to go to trial. Guy got nabbed jaywalking. What an idiot. Anyway, what happens?

• 8:00Speaker 02

  Oh, God.

• 8:00Speaker 01

  Yeah, I know. And then gets off with time served. That's what juries in San Francisco are like, oh, he didn't do anything except for pull weapons on cops while breaking into a building and trying to steal a bunch of bikes from a garage. And it's like, well, you deserve the city you live in. Anyway, what happens to these people who don't walk out of, the people, the dangerous people? What happens to those people?

• 8:19Speaker 02

  They can still be detained, right? And sometimes, those who should be detained, the opposite happens. Like you're saying, they're set free because they can afford bail. So that's the part that gets lost in this argument. Getting rid of cash bail doesn't mean getting rid of jail before trial. A judge can still hold someone who poses a serious danger or is likely to flee.

• 8:43Speaker 01

  Then why involve money at all? If somebody's dangerous, 10 grand doesn't make them less dangerous. There was a Feedback Friday letter where a guy who had repeatedly threatened to kill people and had also beaten his, it was either wife or girlfriend, over and over and over. But he'd be out of jail before she was out of the hospital. Eventually, he went to prison for like 25 years because he tried to burn down the house with her, all of her pets, and elderly family in the house at the same time. So he went to jail for attempted murder. Thank God, everyone was okay, except for one of the cats. But yeah, this guy, bail doesn't make a guy like this less dangerous.

• 9:21Speaker 02

  Right, but he, if he was getting out of jail, he could afford it. So the system doesn't work both ways, right? And that's the whole argument. Either there's a reason to hold you, or there isn't. Your bank balance shouldn't be the thing that decides it.

• 9:36Speaker 01

  Okay, that makes a lot more sense than the way this often gets framed, which is, bail reform, we're just letting everybody out of jail now. I guess, you know, crime has no punishment, is basically what they're trying to make it sound like.

• 9:47Speaker 02

  Right, because the headlines are confusing. And then there's the algorithm approach, which is, you know, when instead of using cash, you use a computer program to assess someone's risk of not showing up to court or committing another crime, and you make release decisions based on that.

• 10:05Speaker 01

  So we replace the bias of humans with the bias of computers, which, I don't know, I'm going to jokingly say, progress, yay, but maybe it is. I don't know.

• 10:13Speaker 02

  Yeah, I mean, who knows? Like, it depends how we're training those systems, right? You know, Utah passed a bipartisan bail reform bill in 2020. It cleared the state senate 25 to 1. Then, within months, crime happened, as crime always does. And suddenly, everything was bail reform's fault. Crime, bail reform. Car accidents, bail reform. Locusts, probably bail reform, right? And COVID made the whole thing even messier, because courts were using something called penny bail.

• 10:47Speaker 01

  Is that as ridiculous as it sounds?

• 10:48Speaker 02

  It's literally what it sounds like. So bail set at one cent, which pennies don't even exist anymore.

• 10:55Speaker 01

  Yeah, sorry, we need exact change. You're in jail for three years.

• 10:59Speaker 02

  So during COVID, courts were trying to keep jail populations down. So nominal bail was being used as a workaround in some cases. So people were being released under this emergency pandemic policy that had nothing to do with the new bail reform law. But when someone released that way, committed another crime, guess what got blamed?

• 11:22Speaker 01

  Right, okay, bail reform, even though the release was tied to an emergency COVID policy that was essentially unrelated. That's a pretty important distinction.

• 11:29Speaker 02

  Right, but instead bail reform took the political hit. And in March 2021, one year after it passed and just five months after it went into effect, Utah repealed it.

• 11:41Speaker 01

  Five months is definitely not enough time to collect meaningful data on criminal justice policy.

• 11:47Speaker 02

  It definitely isn't, but that's the pattern. You need years of research to pass reform. You only need one scary headline to kill it.

• 11:56Speaker 01

  I think you just described our entire political system, okay?

• 11:59Speaker 02

  Yeah, I might have. But another example is in 2016, Alaska passed bail reform. Around this time, shoplifting went up in Anchorage.

• 12:09Speaker 01

  Because of the bail reform?

• 12:11Speaker 02

  Nobody knows. Crime was rising before the law took effect, but business owners panicked, the media panicked, politicians started running on repeal bail reform. So now Alaska's pre-trial detention is higher than before the reform. They're holding more people in jail without any clear evidence that it's made people safer.

• 12:33Speaker 01

  So we blamed reform for crime, rolled it back, didn't solve the crime problem anyway.

• 12:38Speaker 02

  That is basically bail reform in America, yeah.

• 12:40Speaker 01

  Okay, let's talk about the data because every headline says something different. Bail reform causes crime, bail reform has no effect on crime, bail reform stole my catalytic converter. I don't know. It just doesn't.

• 12:53Speaker 02

  I mean, this is just, you know, social science.

• 12:57Speaker 01

  Yeah.

• 12:57Speaker 02

  It all depends on which study you read. One report from the Yolo County District Attorney's Office looked at zero bail policy during COVID and found crime increased 163%. Violent crime went up 200%.

• 13:15Speaker 01

  That's a pretty damning result, isn't it?

• 13:17Speaker 02

  Maybe, until you really look at this study. So it came from the District Attorney's Office in Yolo County.

• 13:25Speaker 01

  Yeah.

• 13:25Speaker 02

  Really, really small.

• 13:26Speaker 01

  That's a small county on the way to basically Sacramento or Lake Tahoe. And when you look out from the highway, it's like a lot of swampy land and you go, where do the people live?

• 13:37Speaker 02

  Where do the people live?

• 13:38Speaker 01

  Who live in Yolo County? Yeah.

• 13:39Speaker 02

  It's, the county probably has one post office, you know? Like, it's very small.

• 13:43Speaker 01

  Yeah, yeah, it's very small, rural looking place.

• 13:46Speaker 02

  And they also looked at it during the single weirdest year in modern history, 2020, and compared just 200 cases.

• 13:56Speaker 01

  That's a lot of asterisks for a study. So it's, I mean, crime's up 163%, right? So they robbed, someone shoplifted from a roadside tomato stand twice that year instead of once? I mean, I don't know, like, you could really, statistics with that sample size, that small are really bizarre. They can be all over the place. So I'm not, look, I'm not saying throw this data out, but 200 cases during COVID, not the most reliable sample or dataset.

• 14:20Speaker 02

  Right, and then the Brennan Center looked at 33 cities over several years and controlled for other factors. It found no overall relationship between bail reform and increases in crime.

• 14:35Speaker 01

  So which one is right?

• 14:38Speaker 02

  Okay, so probably pieces of both. Crime really did rise during COVID. That's true. Police departments were stretched thin, courts were backed up, and social services were overwhelmed. So untangling what was caused by bail reform versus everything else happening at the same time is incredibly difficult.

• 14:58Speaker 01

  So the real answer is?

• 15:00Speaker 02

  It's complicated. You know, lock them up fits on a bumper sticker. Context-dependent social policy analysis does not. And New York is a perfect example, so the evidence there is genuinely mixed. Some studies found rearrest rates went down after reform, others found they went up.

• 15:21Speaker 01

  Why the difference?

• 15:22Speaker 02

  So partly resources. New York City has extensive pre-trial supervision programs, people checking in, monitoring and support services. But a lot of upstate counties don't have that infrastructure. So you're releasing people without any support system and, surprise, it doesn't work as well. You know, you can't just eliminate bail and then walk away. You actually have to replace it with something.

• 15:49Speaker 01

  Okay, something that bugs me is that there's this entire industry making money off this, and it's a lot of money.

• 15:55Speaker 02

  Oh, yeah. I mean, the bail bond industry is worth over $2 billion a year.

• 16:00Speaker 01

  $2 billion. So people probably don't really know what these people do. What do they do? What do bail bondsmen do exactly?

• 16:06Speaker 02

  Okay, so say bail's set at 10 grand. You don't have it, so you call a bail bondsman. You know, if you've ever driven through certain neighborhoods, you've seen those giant Aladdin bail bond signs?

• 16:17Speaker 01

  Yes.

• 16:18Speaker 02

  That's the business we're talking about.

• 16:20Speaker 01

  I know those signs. Aladdin Bad Boys Bail Bond. They always have names that sound like they're open until 4 o'clock in the morning and you might score a lap dance.

• 16:29Speaker 02

  So let's say you call Bob's Bail Bonds and Bob says, okay, I'll cover the $10,000, but you pay me $1,000. That's my fee, that's how I make money.

• 16:40Speaker 01

  And you do not get that $1,000 back?

• 16:43Speaker 02

  It's non-refundable. Even if you're found not guilty, even if charges are dropped, even if it turns out they arrested the wrong person, you paid Bob $1,000 and Bob keeps it.

• 16:56Speaker 01

  Okay, but in Bob's defense, he is providing a service. He's putting up 10 grand for somebody that he doesn't know, who possibly is a degenerate criminal, or not, or totally innocent, and he's taking the risk that they just don't bother to show up for court. So, come on.

• 17:11Speaker 02

  Yeah, right, I mean, that's fair. The bondsman did not invent cash bail. And if this is the system we're going to have, you know, there's a reason Bob's business exists. The problem is what happens to the person who can't afford Bob either.

• 17:26Speaker 01

  Okay, so they just stay in jail?

• 17:28Speaker 02

  Yeah, I mean, if you're really poor, like, you don't have anyone who can scrape together even $1,000, then Bob can't help you. You stay in jail. Their ideal customer isn't rich. It's someone who's too poor to post $10,000, but just rich enough to scrape together $1,000.

• 17:47Speaker 01

  In America, you're innocent until proven guilty, unless you're poor, in which case we apparently accept Venmo. Here's something you can afford, our sponsors. We'll be right back.

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• 20:25Speaker 01

  Okay, so we privatize the presumption of innocence. And let me stop you right here because you don't have to get a bail bondsman, right? I mean, if you have a bunch of money and your bail's 10 grand and you've got 100,000 in a savings account or a checking account, you just write a check for 10 grand and when you show up to court, you get that money back. But most people don't have a spare 10 or 50 grand or whatever it is just laying around that they can afford to not use for a month or however long it takes for this thing to get wrapped up.

• 20:52Speaker 02

  Exactly.

• 20:53Speaker 01

  Oof, okay. So yeah, that's...

• 20:56Speaker 02

  And here's the kicker. The bail bond industry fights reform viciously.

• 21:01Speaker 01

  Of course they do, right? Because bail reform would cut into their business. There'd be a ton of people that no longer need their services that are actually in their target market. People who've committed maybe a small crime or not committed any crime and need 1,000 bucks, 500 bucks, 10,000 bucks, not people who need... Well, I guess really, really wealthy people probably don't need them. And if you've committed a serious crime, your bail's so high, it's probably hard to even get the 10% of it together, right? If you got a million dollar bail.

• 21:28Speaker 02

  Right, exactly. And you can see how this all played out in California when they tried to end cash bail in 2018, but the replacement was controversial. So the bail industry immediately spent millions to stop it. And civil rights groups opposed it too because it relied on that algorithmic risk assessment. So the law never took effect and in 2020, voters rejected it.

• 21:56Speaker 01

  So it got squeezed from both sides. Everybody agreed cash bail was broken, but nobody agreed on the replacement policy.

• 22:03Speaker 02

  Correct. And some people wanted to keep cash bail because they made money from it. Others thought replacing it with a biased algorithm was just trading, you know, one unfair system for another.

• 22:15Speaker 01

  So the for-profit bail bond industry killed a reform to protect the system that makes them rich. Okay, obviously. The industry has a pretty enormous financial incentive to keep cash bail around, for sure.

• 22:24Speaker 02

  And they lobby hard, putting money behind lawmakers and tough-on-crime candidates who will fight reform. So the more politically toxic bail reform becomes, the better it is for business.

• 22:37Speaker 01

  Yeah, because if we fix the system, they lose billions of dollars a year. Who wants that?

• 22:41Speaker 02

  Black defendants are routinely assigned substantially higher bail amounts than white defendants charged with similar crimes.

• 22:49Speaker 01

  The exact same crime? So is the law racist?

• 22:52Speaker 02

  The law doesn't say, "Charge black people more." That's not how it works.

• 22:56Speaker 01

  So where does the disparity come from? Obviously, that was not in my, any of my legal textbooks.

• 23:01Speaker 02

  Thousands of individual decisions. And the judges making them may honestly believe they're being completely objective, but that's the problem with institutional bias. It's very hard to see. And nobody has to consciously decide to discriminate for the outcome to still be discriminatory.

• 23:21Speaker 01

  So whether an individual judge is consciously biased or not, you can still end up with the same disparity.

• 23:26Speaker 02

  Yeah, and then poverty compounds it. So black Americans are statistically poorer for well-documented historical reasons. So higher bail means more detention. More detention means lost jobs, lost housing, and more instability. And Latino defendants face similar disparities. And even when researchers control for criminal history, charge severity, employment, community ties, the gap persists.

• 23:55Speaker 01

  It's a doom spiral. The disparities create more instability and then that instability gets used to justify the same system that created it. Okay.

• 24:02Speaker 02

  Yeah, and it's not even modern. You know, this is the continuation of a very old tradition. After the Civil War, southern states passed these vagrancy laws. Basically, if you were black and unemployed, you could be arrested for vagrancy.

• 24:18Speaker 01

  Oh, so, okay, so being poor was also a crime essentially back then?

• 24:22Speaker 02

  Yeah, I mean, being black and poor was effectively illegal. And then they'd set bail amounts that newly freed people couldn't possibly pay. So they'd sit in jail until they were convicted and then they'd be sentenced to, you know, forced labor or something.

• 24:38Speaker 01

  I see. So southern states essentially used the bail system to re-enslave people.

• 24:43Speaker 02

  Yeah, and the 1960s bail reform movement was part of the broader civil rights push. Activists recognized that cash bail was being used to keep black protesters in jail, to punish them for demanding their rights, and that tough-on-crime meant tough on specific people.

• 25:01Speaker 01

  So today's bail debate did not appear out of nowhere. It's the latest chapter of a very old argument.

• 25:07Speaker 02

  Yeah, I mean, the tactics have gotten more sophisticated, but the disparities haven't. I've had some experience with this in my past where I was out of state, I was arrested, I had to not only spend money on bail, but I had to spend money flying back and forth from the state I lived in to the state I got arrested in. I had to spend money on lawyers. It costs money to get those dash cam footage videos, all of these things that, you know, if I couldn't afford it, luckily I was, had a husband at the time who was a rock star and got to waste a bunch of his money on the legal system. But if I couldn't afford that, I would have sat in jail for years.

• 25:52Speaker 02

  And I think about that sometimes. And even when I did the plea deal, I still had to serve what they call hard labor and fly up to, I was living in the Bay Area at the time, I had to fly up to Seattle and like, report to prison and go out on these, you know, daily cleanup crews and things like that.

• 26:13Speaker 01

  Wow.

• 26:14Speaker 02

  It wasn't even the time, it was the expense. I mean, I gave that court system tens of thousands of dollars just to get my freedom for a very silly incident when I was on vacation.

• 26:27Speaker 01

  Wow, I won't ask what happened to you or what you did.

• 26:32Speaker 01

  But...

• 26:33Speaker 02

  It didn't hurt anybody, I'll be clear.

• 26:36Speaker 01

  All right.

• 26:36Speaker 02

  Just an idiot on tour.

• 26:38Speaker 01

  Yeah, oof, okay. How much of the disparity today can we really pin on bail? Poverty, crime, employment, all that stuff? All that stuff is tangled together in a lot of ways and it's, it gets murky.

• 26:51Speaker 02

  Yeah, for sure. I mean, I would have lost my job if I couldn't afford to keep coming back to my home. And I would have lost my job and been in jail. I mean, it's crazy. So bail didn't create those disparities, but it can compound them. So if two people pose the same risk and one can afford to go home while the other can't, now that second person is also more likely to lose any stability. And obviously, people who commit serious crimes should be detained. Nobody disputes that. The issue is that cash bail doesn't sort people by danger, it sorts people by money.

• 27:28Speaker 01

  So whether somebody gets out, it just has way more to do with their bank account. Having 10 grand tells you I have 10 grand. It doesn't tell you whether I'm actually dangerous, like we said before.

• 27:36Speaker 02

  Yeah, and that's the fundamental problem with cash bail. It's not a new idea. In 1975, French philosopher Michel Foucault argued that modern prisons aren't mainly about punishment, they are about sorting people.

• 27:52Speaker 01

  Sorting them how?

• 27:54Speaker 02

  So into safe and dangerous. And once the system labels you dangerous, it follows you everywhere. Probation, background checks, housing, employment. I just got a new apartment recently and those charges crept up on me. It's humiliating. It's like, okay, I was stupid once, 15 years ago, and now like, I have to pay an extra deposit to get an apartment, you know?

• 28:19Speaker 01

  Right.

• 28:20Speaker 02

  The costs still add up. And you're marked just long after you've served your sentence.

• 28:26Speaker 01

  Geez, so less justice, more permanent record. It's almost like China's social credit score system.

• 28:31Speaker 02

  Right, yeah.

• 28:32Speaker 01

  Yeah.

• 28:33Speaker 02

  Bail does the same kind of thing. It looks neutral, just money, but really it sorts people by class. If you can pay, you're safe. If you can't pay, you're dangerous. You lose your job, your housing, your stability, which makes you more likely to commit crimes in the future, which makes the system's original judgment look correct, but it's just this weird feedback loop.

• 28:57Speaker 01

  Yeah, that's sort of a self-fulfilling prophecy at some point.

• 29:01Speaker 02

  And that philosopher Foucault would say, "That's not a bug, it's a feature." You know, the system isn't broken, it's working exactly as designed, maybe.

• 29:10Speaker 01

  If we all know this, why can't we fix it?

• 29:14Speaker 02

  Because bail reform is political kryptonite. The minute crime ticks up for any reason, whether it was the pandemic, the economy, whatever, bail reform takes the blame and politicians start rolling it back before there's enough time to know whether it worked. New York weakened its reforms three times. Alaska repealed theirs within months. And Utah, you know, gave it five months before pulling the plug.

• 29:41Speaker 01

  So it's like states sign up for a free trial, panic a few months in and then cancel before the invoice comes in?

• 29:48Speaker 02

  Right, right. The politics move a hell of a lot faster than the evidence.

• 29:52Speaker 01

  Sheesh, and both parties do this, right?

• 29:55Speaker 02

  Oh, yeah. I mean, even Democrats run away from it. So former New York City mayor Eric Adams, he came into office with support from a reform-minded coalition, then became one of bail reform's loudest critics. The second crime became a political liability.

• 30:11Speaker 01

  Amazing system we built over here, dang.

• 30:13Speaker 02

  Right. In the 2022 midterms, Republicans hammered Democrats nationwide on bail reform. It was a huge issue. In New York, Kathy Hochul, the incumbent Democratic governor, she almost lost and a lot of analysts blamed the bail reform attacks. What did she do in response?

• 30:31Speaker 01

  Yeah, she just backs away, like, "I don't need to deal with this," right?

• 30:34Speaker 02

  Exactly. And she actually pushed for more amendments to weaken the reforms.

• 30:39Speaker 01

  Yeah, of course she did.

• 30:40Speaker 02

  That's the political cycle, right? Crime's low, politicians pass reforms to look progressive and address racial injustice, then crime goes up for any reason, does not matter why. They blame bail reform. Politicians then gut the reforms and then we're back where we started. Rinse and repeat every, you know, five to 10 years.

• 31:01Speaker 01

  And nobody ever points out that crime goes up everywhere, including places that didn't reform bail. So maybe bail reform isn't the problem. I don't know. What about the reforms they don't gut?

• 31:12Speaker 02

  Sometimes the reform survives and people just find another way around it. California again is a perfect example. In 2021, the state Supreme Court ruled that you can't jail someone solely because they can't afford bail.

• 31:27Speaker 01

  Seems like a pretty straightforward and basic constitutional principle.

• 31:31Speaker 02

  You'd think, but judges just started issuing more no bail holds.

• 31:37Speaker 01

  What does that mean? No bail hold? Just you have to stay here no matter how much money you have? I don't know.

• 31:41Speaker 02

  Yeah, they just eliminated the option entirely. So instead of setting bail at an amount you can't afford, the judge just says, you're not eligible for bail at all. You stay in jail until trial. Same outcome, different paperwork.

• 31:55Speaker 01

  So the whole judgment from the Supreme Court doesn't apply because there is no bail. So it doesn't matter if you can't afford it. It doesn't exist in this case. That's just malicious compliance, essentially, right?

• 32:04Speaker 02

  Yeah, and it gets worse. You know, California wasn't the only place this happened. Maryland changed its rules to keep more people from being detained just because they couldn't afford cash bail and it worked. Fewer people were held on cash bail, but guess what else happened?

• 32:21Speaker 01

  More people got held without any bail at all?

• 32:23Speaker 02

  Right, yeah. And the percentage of people held on cash bail went down, but the percentage of people held without any bail, it went from 13.6% to 22.6%. So same number of people locked up, just renamed.

• 32:40Speaker 01

  So instead of figuring out what people could afford, judges increasingly took bail off the table altogether to avoid the whole mess and the fact that what they were doing was essentially against the spirit of the law.

• 32:51Speaker 02

  Yeah, and then there's another problem called net widening.

• 32:54Speaker 01

  What's that? That sounds bad.

• 32:55Speaker 02

  Yeah, it is bad. So the idea is instead of cash bail, we'll release people with supervision. So check-ins, drug tests, those ankle monitors, you know, whatever.

• 33:08Speaker 01

  So as an alternative to jail, that's good then, maybe.

• 33:11Speaker 02

  Yeah, well, except some judges started ordering supervision on people they used to just release outright.

• 33:17Speaker 01

  Ah, okay. So people who would have normally walked free with nothing are now, they now have an ankle monitor that goes off when they go to Carl's Jr. for a burger.

• 33:25Speaker 02

  Exactly. And that affects your day to day life, too. And so, you know, we didn't shrink the system. We just gave it a bigger net.

• 33:32Speaker 01

  Yeah, we traded one form of control in jail for another form of control electronically, except now it's applied to way more people because it's probably cheaper and jails fill up, but maybe you can make, I don't know, maybe they can lease ankle monitors from whatever contractor for cheaper. I don't know. Although if somebody, I don't know, if somebody's been arrested, isn't some monitoring better than none? I don't know.

• 33:52Speaker 02

  Not if they're people we already decided did not need monitoring.

• 33:57Speaker 01

  Nothing says equal justice under the law like a freedom menu with surge pricing. Speaking of capitalism behaving exactly as intended, let's hear from our sponsors. We'll be right back.

• 34:09Speaker 01

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• 35:36Speaker 01

  opinions on Feedback Friday questions. Gabe and I are in there. Almost the whole team, in fact, is over there. A lot of fun and a lot of discussions and a lot of fun pushback and other points I never thought of, so I really enjoy it as well. Come join us on the Jordan Harbinger subreddit. Now, back to Skeptical Sunday.

• 35:52Speaker 01

  What about resources? Doing any of this stuff well costs money? I mean, I said that ankle monitors are cheap, but they're probably not actually cheap and somebody has to pay attention when it goes off and call the police or whatever, right?

• 36:03Speaker 02

  It absolutely costs money and a lot of reforms fail because nobody funds them. So states say, release more people, then they forget to fund the people responsible for making that release successful.

• 36:17Speaker 01

  So we understand the reform, we watched it struggle, and then we blamed the reform for that struggle?

• 36:23Speaker 02

  Yes.

• 36:24Speaker 01

  Amazing. No notes. But, well, if you release somebody without any support system, without any supervision, without any resources, yeah, you're gonna have a big fail rate, obviously.

• 36:33Speaker 02

  Of course, yeah. Some of them are going to fail, not because bail reform is bad, but because we half-assed the implementation. So during COVID, courts released more people instead of holding them in jail before their trials because they were trying to stop jails from becoming infection factories. Critics predicted chaos, crime waves, people fleeing, like the collapse of civilization.

• 36:56Speaker 01

  And what actually happened?

• 36:57Speaker 02

  Most people showed up to court. Crime followed the same national trends. The apocalypse did not occur.

• 37:04Speaker 01

  So we had evidence that releasing people doesn't cause society to collapse and we just ignored that evidence?

• 37:10Speaker 02

  Worse than ignored it, we learned nothing because it's politically convenient to blame soft on crime policies rather than addressing the actual disruptions of a global pandemic.

• 37:22Speaker 01

  Yeah, the economy collapsed, millions of people lost their jobs, schools were shut down, social services broke down, but somehow the villa of the story is bail reform, not putting people with COVID in close proximity with a bunch of other people that maybe didn't do anything.

• 37:35Speaker 02

  Right, yeah. And now we have those risk assessment algorithms as a solution to bail. Instead of using money, we're using AI and computers to decide who's dangerous.

• 37:46Speaker 01

  Are we really doing that? I kind of, look, I assume the idea was to take the bias out of things, but it also, that stuff is not there yet. I mean, you can basically just automate racism accidentally.

• 37:57Speaker 02

  That's actually pretty accurate. So the idea is if you get arrested, instead of a judge looking at you and making a gut decision about bail, a computer program assesses your risk. It looks at factors like your age, your criminal history, your employment and your ZIP code.

• 38:15Speaker 01

  Ah, yes, the famously race neutral ZIP code algorithm.

• 38:19Speaker 02

  Right. And then it gives you a score. You come up either low risk, medium risk or high risk. And judges are supposed to use that score to make release decisions objectively. But in 2016, ProPublica found that among people who didn't go on to commit another crime, black defendants were nearly twice as likely as white defendants to be incorrectly labeled high risk.

• 38:45Speaker 01

  Twice as likely, wow. So not even just like 5% more, oh, that's really unfair. No, 100% more. And this is what happens with AI, right? You train an AI model on data that might have racist bias in it already and then the AI itself becomes racist. And it's not because, yeah, you're just training it on all this data that's also biased. I mean, the natural conclusion it's going to come to is like, oh. And the thing is, you can't look at how AI makes decisions very easily. So it's not going to say, I decided that since this person lived in a ZIP code with a bunch of African Americans, that anybody who lives in that ZIP code is more likely to flee because of their skin color. Like, it's not going to tell you that. It's going to calculate 10 zillion different things and not tell you how the, what those things are or how they're weighted necessarily.

• 39:30Speaker 01

  And it's going to come up with a conclusion and you just have to trust it sort of blindly. And there's probably ways to fix that with different data, but you have to de, you have to unbiased or de-bias that data first. So that's really tough to do.

• 39:44Speaker 02

  Yeah, it's really tricky and it works the opposite way, too, because white defendants are more likely to be incorrectly labeled low risk, meaning they were actually more likely to reoffend, but the algorithm predicts they're safe.

• 40:02Speaker 01

  What we should have tried to find here, I would love, is compare the AI to actual human judges. Like, are human judges even more racist than the AI? Because if so, it's actually progress. We just can't pretend the problem is solved. Because I interviewed this guy who was a Mormon drug dealer and he had, I don't know, he got caught with like a bunch of meth in bags and scales and he was like, he was a drug dealer. And the guys before him that were in court getting arraigned had gotten caught with like smaller bags of weed and they got something like three years in jail. And he was going, oh my God, I'm so screwed. I have way more drugs than them and it's meth, it's not weed and I was intending to distribute it and they caught me dead to rights. And the judge was like, you go to college at such and such?

• 40:45Speaker 01

  Oh, well, go Buccaneers, eh? Ha ha. Well, you're gonna keep your nose clean from here on out, right, buddy? And then like let him go with probation. And like no bail and whatever it was, I can't remember exactly. But basically he was like, holy smokes.

• 40:58Speaker 02

  But the AI would probably likely make the same decision. And the thing is, because again, we're looking at the zip code and their whole history. And the thing is, the judges are then using the AI's scoring to make their final decision. So it's all just tangled up together.

• 41:18Speaker 01

  Sure. Okay. So the algorithm is racist, but the algorithms are objective, right? They're just math. They can't be biased, right? So I mean, we kind of just talked about why that's not the case.

• 41:28Speaker 02

  Exactly. Exactly what you just said. So we're training it on a century of biased data. And we took all that bias and we just put it into a spreadsheet.

• 41:37Speaker 01

  Yeah. Wow. Except now the spreadsheet comes with this number attached to it. So it looks objective because the AI is like, I'm super smart and unemotional. Well, how could I possibly be racist? And then that makes the bias a lot harder to challenge. Meanwhile, like you said, black defendants are sitting in jail because a computer program encoded centuries of racism into its decision making.

• 41:56Speaker 02

  Right.

• 41:56Speaker 01

  And most criminal cases don't go to trial.

• 41:59Speaker 02

  Right. About 95% of criminal cases end in plea bargains.

• 42:04Speaker 01

  That is crazy. So we don't really have a trial. So this is one of the biggest critiques of the legal system that I have as well. We don't really have a trial system anymore. We have a plea bargain system. I think we probably should explain this a little bit further, actually.

• 42:17Speaker 02

  Right, sure. I mean, pre-trial detention is the pressure point, right? That makes the entire plea bargain machine work. So imagine again, you're arrested for something you did not do. You don't have money for bail. You don't have money for Bob to get you out. You just sit in jail. The days turn into weeks, the weeks turn into months. You haven't been convicted of anything yet, but you've lost your job, maybe your apartment. If you have kids, you're missing their lives. Maybe you're losing custody.

• 42:50Speaker 01

  And all this before you've been convicted of anything. And then your lawyer offers you a way out. Plead guilty, the prosecutor is going to reduce the charge. You get probation, you get time served, you can go home today. I mean, I would take that deal, even if I was innocent, I think, at that point.

• 43:05Speaker 02

  Yeah, I think most people would, and most people do take that deal. Because the alternative isn't justice. It's waiting in jail for months or years, hoping the jury eventually believes you.

• 43:18Speaker 01

  At some point, you're not even choosing between guilty and not guilty anymore. You're choosing between going home and staying in jail.

• 43:24Speaker 02

  Right. Exactly why people take the deal. And studies show that people in pre-trial detention are four times more likely to be sentenced to jail time. And they receive sentences that are three times longer than people who were released pre-trial, even when you control for the charges and criminal history.

• 43:45Speaker 01

  So even though you're supposed to be presumed innocent, being in jail before trial makes you more likely to go to jail after trial?

• 43:52Speaker 02

  Yeah. I mean, think about the difference. So if you're released on bail, you can keep your job, you can meet with your lawyer, you can help gather evidence and actually prepare for trial. If you're detained, you're trying to do all that from a jail cell while your job, your housing, your family life is most likely falling apart.

• 44:13Speaker 01

  And at some point, taking the plea, it basically looks like the only way to make the pain stop. Yeah?

• 44:18Speaker 02

  Yeah. And prosecutors know this. So pre-trial detention gives them enormous leverage. It's like a threat. And this is exactly what happened to Kalief Browder, the kid we talked about with the backpack. He was offered plea deals repeatedly over those three years he sat in jail.

• 44:36Speaker 01

  So he held out because he refused to lie and it basically destroyed his mental health and he ended up killing himself. That's so tragic.

• 44:42Speaker 02

  Exactly. And most people can't hold out that long. Most people don't have Kalith's strength or his stubbornness, I guess, or his belief that the system would eventually recognize his innocence. You know, most people break.

• 44:56Speaker 01

  Because the system is designed to make them break. So bail isn't just about whether you're free before trial. It's about whether you have any leverage in the trial itself.

• 45:04Speaker 02

  It's about power. If you're out on bail, like I said, you can help prepare your defense and you can meet with your lawyer easily and frequently, you know, helping to get all that evidence and fight the charges without sitting in a cell while the clock runs out on your life.

• 45:20Speaker 01

  In many ways, we really don't have a justice system. We just have a processing system.

• 45:24Speaker 02

  We have a processing system, like wearing a justice system costume, I guess.

• 45:29Speaker 01

  Yeah, sure. And bail is the gears in that machine. Okay. Give me one thing that actually works.

• 45:35Speaker 02

  Okay, I've got one. So Washington DC has operated without commercial bail bonds or cash bail since 1992.

• 45:45Speaker 01

  DC, our nation's capital, figured this out more than 30 years ago?

• 45:49Speaker 02

  Yeah, our nation's capital. It has one of the longest running alternatives to cash bail in the country.

• 45:56Speaker 01

  All right. How does that work?

• 45:58Speaker 02

  So after you're arrested, they assess whether you're likely to flee or pose a danger to the community. About 90% of people are released, sometimes with check-ins, drug testing, or whatever level of supervision is appropriate.

• 46:12Speaker 01

  And the other 10% of people, those who are held in jail until their hearing, what, they're a flight risk or whatever?

• 46:18Speaker 02

  Yeah. I mean, they can be detained if the court finds they're a flight risk or they pose a serious danger. But the key is that the decision is based on risk, not money. And about 88% of people released pre-trial show up for court, comparable to or better than many places that use cash bail.

• 46:39Speaker 01

  This is pissing me off. We've had a working model in our nation's capital for more than 30 years and we just haven't copied it anywhere else. Why? What the hell? This is insane to me.

• 46:48Speaker 02

  I know. Well, the politics look at it and they say, you know, DC is special. It's a unique jurisdiction because calling it an exception is easier than asking what the rest of the country could learn from it.

• 46:59Speaker 01

  Also, Bob's bail bonds would lose billions.

• 47:02Speaker 02

  Right. And another thing that works is almost embarrassingly simple. Text message reminders for court dates.

• 47:10Speaker 01

  That's it? It's that simple because it's mostly people forgetting to go to court?

• 47:13Speaker 02

  Yeah, it really is. I mean, that's it. In New York City, they tested text reminders for people with low-level court summonses. And failures to appear dropped 26%. So it turns out for a lot of people, a reminder worked better than any threat of punishment.

• 47:31Speaker 01

  That's amazing and also infuriating. And I cannot believe it was this easy the whole time.

• 47:36Speaker 02

  I know. A lot of people who miss court, they're not fleeing. They just forgot the date. They went to the wrong place. They couldn't afford childcare or bus fare or, you know, whatever.

• 47:46Speaker 01

  So what about other countries? You said only the US and the Philippines use commercial bail bonds. What are funging democracies doing?

• 47:54Speaker 02

  It's pretty simple. The basic principle in many countries is release unless the government can justify detention. You go home unless there's a specific reason to hold you. That's it. In the UK and Canada, the police can hold you for 24 hours. Then you're released unless there's a specific reason they can prove to keep you locked up. You have to prove that reason. It's not automatic.

• 48:22Speaker 01

  So you have to show why the person needs to stay, not prove that you can actually afford to buy your freedom?

• 48:28Speaker 02

  Correct. And Germany treats pre-trial detention as an absolute last resort. You basically have to be a flight risk or a serious danger to be held.

• 48:38Speaker 01

  Which, to be clear, some people are. I've got a friend of a friend, I'll say, in pre-trial detention in Poland right now. And she's been there for like, I don't know, seven months. Because she's from a country that doesn't have extradition treaties and she's being held on espionage charges. And so like, they know she's just going to flee and never show face for trial. And I would imagine it's a national security thing. I would not want to be in that position.

• 49:04Speaker 02

  Of course, there's things like that going on, but.

• 49:06Speaker 01

  Yeah.

• 49:06Speaker 02

  The argument isn't that nobody should be held before trial. It's that being broke shouldn't be the reason you're there. And Japan has its own problems, including some pretty questionable detention practices during interrogation, but they don't have commercial bail bonds either.

• 49:24Speaker 01

  We've somehow turned due process into an escape room with a cover charge. We'll be right back.

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• 50:02Speaker 01

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• 50:13Speaker 01

  So every developed country looked at commercial bail bonds and said, no, we're absolutely not doing that. Everybody except for us in the Philippines. It's funny, my friend was in, I feel like I'm really outing myself as a person with questionable friends, but my friend went to Japan and he was in prison there for several months, pre-trial detention, I should say. They ended up letting him go, basically on his own recognizance at that point and saying like, you know, eh, you were in jail for three months for this thing that probably wouldn't have gotten you that much time. Basically, time served. Anyway, he was in prison in Japan, and it's funny because he's an Asian guy, but he's not Japanese, so he learned Japanese really well because the only people in prison were like Yakuza guys and gang members and stuff like that, really. And so he was in Japanese prison with all of them.

• 50:58Speaker 01

  And they had already been, I guess in Japan, it's weird. I think they mix people who've been sentenced and people who haven't. He was in pre-trial detention in a jail and the other guys, like his cellmates, were, oh, no, I'm here for years for murdering another Yakuza member. And the stories are crazy, right? Because first of all, he had to learn Japanese, but he had to learn like gangster Japanese, first of all, to communicate with these guys. And they got tons and tons of extra food. Because if you have money in Japan, this is probably one of the problems you found, you can just buy better food. They're totally happy to accommodate, if you have money, buying better food. So he bought better food and he would trade his better food with the other better food

• 51:40Speaker 01

  that the Yakuza guys have, because if you're Yakuza, then the gang gets you your better food and your benefits there. And he gets his stuff from like, I don't know, the US Embassy and/or Japan from just shelling out cash. So he's like doing pretty well in this Japanese jail. He's basically on a cultural immersion program in a very awkward environment, right? He's learning the language really well. There's no English anywhere. There's no English media, right? There's no internet. And he's just like sitting there with his Japanese dictionary, gambling with Yakuza members and gambling sushi rolls or whatever the hell with like these Yakuza members. I have no idea how we got in this. Oh, right, because Japan has its own problems, including some questionable detention practices during interrogation, but no commercial bail.

• 52:23Speaker 02

  I'd love to look more into food in prison because I'm just thinking of that scene in Goodfellas where they're, they get all the good, the gangsters get all the good food and they cook these huge dinners. Do you remember that?

• 52:35Speaker 01

  Vaguely, yeah. Maybe you can't do that anymore. I don't know. That's starting to look like El Chapo stuff, right? Where he builds his own wing of the prison and it's like super nice and he's got parties there and there's a kitchen and like he's got, basically he lives in a mansion inside a prison. And he still escaped from there, by the way, if memory serves. So every developed country looked at commercial bail bonds and said, no, we're absolutely not doing that, except for us and the Philippines.

• 52:59Speaker 02

  Exactly. It's our policy twin.

• 53:01Speaker 01

  Yeah, so somehow we're one of the two countries doing this and we talk about getting rid of it like it's some kind of radical experiment with totally unknown consequences.

• 53:08Speaker 02

  I know. It's just bizarre how powerful those political headlines are, like questioning cash bail somehow became synonymous with being soft on crime.

• 53:19Speaker 01

  Even though it jails legally innocent people by the dozen compared to the actual guilty ones, based on their bank account balance.

• 53:26Speaker 02

  Yeah, and it's wildly expensive. I mean, keeping one person in jail costs taxpayers somewhere between $80 and $150 a day, depending on the jurisdiction. And pre-trial detention costs the US billions every year.

• 53:42Speaker 01

  So taxpayers are paying to jail people who haven't been convicted. That's what I think people really need, we really need this to sink in. If you haven't been convicted, you're still innocent. If you're not violent and you haven't been convicted, you're literally just like anybody else out there. If you've been accused of murdering somebody, killing somebody, I'm okay with a little extra caution, for sure, maybe monitoring and/or pre-trial detention. But yeah, I don't know, man. There's people in jail for doing stuff like accidentally shoplifting or probably things like ticketable offenses, like jaywalking, but you haven't paid your tickets because you don't have the money. Those people are in jail instead of working.

• 54:16Speaker 02

  There's a lot of people in jail who then they're found innocent, like, oh, no, we have, the guy just looked like you, kind of stuff. Happens all the time.

• 54:24Speaker 01

  Like the backpack kid. I mean, he didn't do it.

• 54:26Speaker 02

  Like the backpack kid. And then because life on the outside doesn't wait, some people, then they get out and they end up in need of public assistance. So taxpayers are funding the detention and then fund the damage caused by the detention.

• 54:43Speaker 01

  Yes, and there's some impressive cognitive dissonance there. We don't want to spend money helping people stay on their feet, but apparently we will spend a fortune knocking people off their feet.

• 54:53Speaker 02

  And the alternatives are cheaper. Properly funded supervised release programs cost far less than jail. Electronic monitoring can be used when someone genuinely needs oversight. And then there are, you know, community bail funds.

• 55:09Speaker 01

  Community bail funds? That's a thing?

• 55:11Speaker 02

  Yeah, that's a thing. You know, nonprofits raise money to post bail for people who can't afford it. And when someone appears in court, the fund gets the money back and uses it for the next person.

• 55:23Speaker 01

  So it's a revolving freedom fund?

• 55:26Speaker 02

  Yeah, essentially. And studies show that people released through these funds generally appear in court at rates comparable to or often higher than people who post their own bail.

• 55:38Speaker 01

  Really? I guess because most people want to resolve their case and maybe nobody wants to be the asshole who stiffed the neighborhood freedom fund?

• 55:45Speaker 02

  And they aren't trying to disappear. They're not trying to avoid justice. They just can't afford to buy their freedom while they wait for their day in court.

• 55:53Speaker 01

  So we have a 30-year model in DC. Simple reminder system, supervised release and community bail funds. Simple solutions that already exist.

• 56:02Speaker 02

  Yeah, we have all of that.

• 56:03Speaker 01

  And we've just chosen not to do any of it at scale. Is it only the lobbying? I mean, why? What's going on here?

• 56:09Speaker 02

  Because the system isn't only deciding who might be dangerous, it's deciding whose dangerous behavior matters. So like during the protests after Freddie Gray's death in Baltimore, a teenager accused of breaking a car window was held on $500,000 bail.

• 56:27Speaker 01

  Wow, half a million bucks for a broken window. That's insane.

• 56:30Speaker 02

  And do you want to know what bail was set at for the six police officers charged with Freddie Gray's death?

• 56:37Speaker 01

  Oh, no, I don't want to know. Lower?

• 56:39Speaker 02

  Much lower. Every single officer charged with Freddie Gray's death received way lower bail than the teenager accused of breaking that window.

• 56:49Speaker 01

  And so that's the whole problem, right? We say bail is about danger, but when a teenager accused of breaking a window, which is essentially just vandalism, not dangerous, when that kid gets higher bail than police officers charged with killing somebody, money clearly is not actually measuring risk.

• 57:04Speaker 02

  Right, it's measuring something, it's just isn't danger.

• 57:08Speaker 01

  It feels like we're doomed over here with this kind of stuff. I hate this.

• 57:11Speaker 02

  We might be doomed.

• 57:12Speaker 01

  All right, so bottom line, does bail reform work? Trick question, probably.

• 57:16Speaker 02

  Yeah, right. I mean, the best research shows bail reform doesn't increase crime.

• 57:21Speaker 01

  Okay, good.

• 57:22Speaker 02

  It doesn't appear to reduce crime either.

• 57:25Speaker 01

  How is that possible?

• 57:27Speaker 02

  Yeah, I mean, from a public safety standpoint, it's largely crime neutral, although all the studies I've read, it's just, it doesn't seem like we've given it enough time to really collect enough data, but it seems to be crime neutral.

• 57:41Speaker 01

  So what does it actually do?

• 57:43Speaker 02

  So it reduces the number of legally innocent people sitting in jail simply because they can't afford bail. That's what it does.

• 57:51Speaker 01

  Okay, good. That's the point.

• 57:53Speaker 02

  I mean, that's absolutely the point, but bail reform doesn't solve poverty, addiction, homelessness or the mental health crisis.

• 58:01Speaker 01

  All these things driving a lot of crime in the first place, arguably.

• 58:04Speaker 02

  I mean, it corrects one specific injustice. It doesn't cure every social problem around it.

• 58:11Speaker 01

  Then why does it inspire this much backlash again? That's the confusing part for me.

• 58:14Speaker 02

  Because does bail reform cause crime is probably the wrong question we're asking.

• 58:20Speaker 01

  So what's the right question?

• 58:22Speaker 02

  Should we be jailing people before they've stood trial?

• 58:26Speaker 01

  Because we claim to believe in innocent until proven guilty.

• 58:29Speaker 02

  We claim to believe in innocent until proven guilty, yet roughly 70% of people in local jails have not been convicted of anything. So on any given day in America, that's around half a million people being held before they've been found guilty.

• 58:46Speaker 01

  And for many of them, the difference between home and jail is just purely money.

• 58:50Speaker 02

  Purely. And that's where I keep coming back to the same question. Is the system broken or is it doing exactly what it was built to do?

• 58:58Speaker 01

  Meaning what?

• 58:59Speaker 02

  So we tell ourselves bail is about court appearances and public safety, that detention protects the community, but in practice, it also sorts people into categories of deserving and undeserving, safe and dangerous, free and controlled. And the people marked for control are disproportionately poor, black and brown.

• 59:23Speaker 01

  So the cruelty is kind of the point. And I'll admit, my instinct with this stuff is still, if somebody's dangerous, I don't want them back on the street at all. Yeah, we're talking about people who haven't been convicted essentially being punished.

• 59:35Speaker 02

  Yeah, cash bail punishes people before the verdict, then disguises that punishment as a neutral financial decision.

• 59:42Speaker 01

  And that's why the backlash is so fierce.

• 59:45Speaker 02

  Yeah, because this isn't only a fight over crime statistics, it's a fight over who gets freedom by default and who has to prove they deserve it.

• 59:54Speaker 01

  That's bleak.

• 59:55Speaker 02

  I mean, it's accurate, though.

• 59:57Speaker 01

  Okay, so even when reform passes, the system can recreate the same outcome, detention without bail, or supervision for people who once would have just been released outright. But we also know what helps: DC's pretrial model, court reminders, properly funded supervision, and release decisions based on risk instead of on wealth. And I know properly funded supervision, people are like, aha, money, but remember how much it costs to incarcerate these people before they've been convicted. It's way, way more, way more.

• 1:00:24Speaker 02

  And yet, we've kept one of the only commercial bail systems in the world, a system that costs billions of dollars, produces enormous racial and economic disparities, and still can't prove that money makes us safer.

• 1:00:39Speaker 01

  Because in America, you're innocent until proven guilty, unless you can't make bail, then justice is apparently paywalled. Thanks, Jess, for bailing us out of this one. And thanks to you all for listening. Topic suggestions for future episodes of Skeptical Sunday to meet Jordan at jordanharbinger.com. Advertisers, deals, ways to support the show, on the website at jordanharbinger.com/deals. I'm at Jordan Harbinger on Twitter and Instagram. You can also connect with me on LinkedIn. You can find Jessica on her Substacks, Between the Lines and Where Shadows Linger. We'll link to those in the show notes. Her work is on Instagram, at NeverMetJessica's. This show is created in association with Podcast One. My team is Jen Harbinger, Jace Sanderson, Tada Sidlowskis, Robert Fogarty, Ian Baird, and Gabriel Mizrahi.

• 1:01:22Speaker 01

  Our advice and opinions are our own, and I'm a lawyer, but I'm not your lawyer. Also, we try to get these as right as we can. Not everything is gospel, even when it's fact-checked. So consult a qualified professional before applying anything you hear on the show, especially if it's about your health and well-being. Remember, we rise by lifting others. Share the show with those you love. If you found the episode useful, please share it with somebody else who could use a good dose of the skepticism and knowledge that we doled out today. In the meantime, I hope you apply what you hear on the show so you can live what you learn, and we'll see you next time.

• 1:01:53Speaker 01

  How could a war halfway around the world affect what you pay or what you can buy? Here's a preview with Peter Zion on what happens when the countries making our everyday essentials can't keep delivering.

• 1:02:02Speaker 03

  Since 1989, there's really only been one large military-industrial complex in the world that's been American, and most of our allies buy our equipment. And what we're discovering now is a lot of these new technologies are really effective at destroying some of these types of equipment in certain environments. The technology is evolving so quickly. The rules of the game are changing, the goalposts are moving, and every state in the Persian Gulf, and every front and second-line state in NATO against the Russians, has already broken ground on mass manufacturing facilities to make Ukrainian drones at scale. So it's entirely possible that two years from now, every ally we have is not going

• 1:02:45Speaker 03

  to be buying meaningful military equipment from the United States, because it's just not applicable anymore, and we won't deliver anymore. We are seeing deglobalization accelerating at the same time the United States is deindustrializing. If anything, we need to be sprinting in the opposite direction. We're no longer building ourselves out for what is coming. We're just kind of waiting for the world to happen to us now. To keep it going, you need the United States to maintain the military structure that allows global trade to happen. It never occurred to me that we could have an administration so out of touch with reality that we would do this on purpose. This conflict is going to go down in history as the moment where the United States lost the ability to influence the Eastern Hemisphere.

• 1:03:30Speaker 01

  To hear how working with Canada and Mexico could help America weather the chaos and what's standing in the way, check out episode 1370 of The Jordan Harbinger Show with Peter Zion.