Two United State Senators have proposed reforming money bail as a way to lower the incarceration rate in the country.
Sen. Rand Paul (R-KY) and Sen. Kamala Harris (D-CA) are co-sponsoring the Pretrial Integrity and Safety Act, which would “encourage states to reform or replace the bail system.” The U.S. Department of Justice would provide grants to states that reform their bail system, but the reform would be individual to each state.
In a New York Times column, Paul and Harris argue that it is unfair, discriminatory, and ineffective to lock up people just because they can’t pay their bail.
“Bail is supposed to ensure that the accused appear at trial and don’t commit other offenses in the meantime,” Paul and Harris write. “ But research has shown that low-risk defendants who are detained more than 24 hours and then released are actually less likely to show up in court than those who are detained less than a day.”
Locking up those people awaiting trial accounted for 95 percent of the growth in the jail population from 2000 to 2014 and costs the taxpayers $38 million a day, or $14 billion a year, said the senators. most of whom are non-violent offenders, the senators said.
Studies have also shown that bail unfairly impacts people of color. Black defendants are more likely to have higher bail, are are less likely to be able to pay. The reformation of bail has become a top priority of many criminal justice reform organizations.
Under the proposed legislation, bail would be replaced with individualized pretrial assessments that would determine the risk of releasing a specific individual who is awaiting trial. People who are not flight risks or likely to commit more crimes would be released.
States like Kentucky and New Jersey have already moved away from cash bail towards an assessment model. Similarly, states like Colorado and West Virginia have improved pretrial services like using telephone reminders to make sure people don’t miss court dates.
“These nudges work,” Paul and Harris write. “Over the second half of 2006, automated phone call reminders in Multnomah County in Oregon, resulted in 750 people showing up in court who otherwise may have forgotten their date.”
Andrea Roth, an assistant professor of law at the University of California Berkeley, said that the quality of assessments vary, because some assessments can be racially biased.
However, states that accept the grants would also be required to show their risks assessments don’t discriminate against people of color and collect information on how defendants are treated that will be released once a year to the federal government.
Despite the deep polarization in Washington D.C., Harris expressed optimism that something could get done on bail.
“This is something that should not be thought of as even bipartisan; it should be a nonpartisan issue, and I feel optimistic that we can appeal to people across the aisle.” Harris said to the Los Angeles Times.
The Washington Examiner reported that the legislation already has the support of over 30 criminal justice organizations, including groups like the Center for American Progress, the NAACP, the ACLU, the National Association of Criminal Defense Lawyers, and even the Association of Prosecuting Attorneys.