Sens. Kamala Harris and Rand Paul propose discouraging money bail for pretrial defendants

Kamala Harris Rand Paul

WASHINGTON — Pretrial detention in jails across America costs taxpayers $38 million a day, according to a bill introduced Thursday by Sens. Kamala Harris and Rand Paul that proposes to give states and Indian tribes grants to encourage courts to replace the longstanding use of money bail.

The Pretrial Integrity and Safety Act would give local jurisdictions grants to transitions out of the system of bail bonding used to assure that defendants make court appearances. Harris, a California Democrat, and Paul, a libertarian-leaning Republican from Kentucky, maintain people should not be held in jail simply because they can’t pay for pretrial release.

“In our country, whether you stay in jail or not is wholly determined by whether you’re wealthy or not — and that’s wrong,” said Harris, a career prosecutor and former California attorney general.

“By giving states greater freedom to undertake reforms specific to their needs, our legislation will help strengthen protections for minority and low-income defendants, reduce waste and move our bail system toward more effective methods, such as individualized, risk-based assessments,” Paul said.

The bipartisan bill would make it the sense of Congress that unnecessary detention may be counterproductive, noting studies indicate that those detained for more than 24 hours and then released are less likely to reappear in court than those held less than 24 hours.

Citing a 1983 U.S. Supreme Court case, the bill notes the court found unconstitutional, and prohibited, “punishing a person for his poverty,” which Harris and Paul maintain can occurs with money bail. The consequences of pretrial detention, the bill says, can be devastating and include loss of employment and threatened child custody.

In addition, defendants sitting in jail are hindered in gathering evidence and contacting witnesses in the preparation of a legal defense. An inability to make bail “may result in innocent individuals pleading guilty to low-level crimes so they can be released,” the bill says.

The Harris-Paul bill would amend a 1968 crime control law to encourage “evidence-based” approaches to assuring defendants return to court. It would provide $10 million to no more than six state or tribal court systems per year for analysis, training and technical assistance to assess “risk of flight risk” with a presumption favoring release in most cases.

Those receiving the Justice Department grants would seek to have 95 percent of defendants return to court as scheduled with release rates of 85 percent of those awaiting trial. Hearings to make the risk assessment would occur within three days of arrest or booking. Judges would be encouraged to find non-financial conditions for release to assure returns to court.

Beth Chapman, chairman of the board of directors of the Professional Bail Agents of the United States and the co-star of A & E Television’s “Dog The Bounty Hunter,” did not immediately respond to a request for comment on the legislation.

A 2015 Public Policy Institute of California study showed that California’s median bail amount, at $50,000, is five times higher than the national average and noted pretrial release generally declines as bail amounts increase. In late 2014, 62 percent of the California jail population were awaiting trial or sentencing.

The same study found California had a higher rate of failures to appear than the rest of the country.

Although distant ideologically on many issues, Harris and Paul have been quietly working together on the effort over the past few months with occasional shout-outs. Harris mentioned in a speech in may that Paul has been advocating a “better approach” to handling drug addiction while Paul mentioned Harris in a Twitter blast calling for reform of the criminal justice system days later.

Harris is expected to tout the proposal when she speaks at the NAACP convention Monday in Baltimore.

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