No Substance to Be Found in Senator Harris’s Federal Bail Reform Legislation

NO SUBSTANCE TO BE FOUND IN SENATOR HARRIS’S FEDERAL BAIL REFORM LEGISLATION By Jeffrey J. Clayton, Executive Director, American Bail Coalition   (Guest Post)

First-term U.S. Senator Kamala Harris (D-Calif.) seems intent on making a name for herself. She has attempted to portray herself as the champion of bail reform by co-authoring a bill with Rand Paul (R-Ky.) to remake the system of wholesale incarceration of inmates being held in jail. What she has actually succeeded in doing is showing the public that she is nothing more than just another self-serving hack, like so many who have preceded her in Washington. There is no question that bail reform is needed in this country. Fortunately, there are numerous meaningful conversations taking place in many quarters with law makers and others who truly want to improve our system of criminal justice.

However, Harris’ recent actions along with her past history reveal that she has no true grasp of bail reform, much less a commitment to enacting genuine change. Instead, the public has now been treated to her making a grand splash by unfurling a bill that is nothing short of ridiculous. Harris and Paul’s bill is being touted as a bi-partisan plan to fix the problem of hordes of people sitting in jail as they await trial. It proposes to provide $15 million to U.S. Attorney General Jeff Sessions for a program for which he has voiced no support whatsoever. That amount of money is miniscule and beyond insufficient to fund anything of substance. Moreover, Harris whiffed on a couple of other points. Her plan calls for states to report on their progress and to ensure that their risk assessment criteria are non-discriminatory. Unfortunately, the Bureau of Justice Statistics no longer creates the reports she is demanding. In fact, that very data has already shown that contrary to her stated claims, money bail really does work to guarantee appearance in court and protect public safety. Further, Harris specified $10 million to be expended over the next three years to enact additional reforms. These reforms are already notated in the existing federal budget – but at an amount fifty to 100 times greater than the tiny amount she delusionally put forward. Taken as a whole, this piece of legislation is a joke and offensive to anyone who has ever been involved in the very serious matter of bail reform. Whether one wants to abolish monetary conditions of bail altogether or believes the system is just fine the way it is, it is painfully obvious that it is nothing more than a pathetic and embarrassing effort at grandstanding. Because it has virtually a zero chance of actually accomplishing its stated goals, the true reasons for its existence are painfully clear: keep the flow of donations coming in, while putting Harris and Paul’s names in the news. Perhaps most disturbing about the bill is Harris’ own history concerning the issue of bail. While serving as California’s Attorney General, she held contradictory positions on two virtually identical cases which dealt directly with whether or not bail in the state was legal. She chose not to defend the constitutionality of California law in the case of Buffin v. San Francisco, in which it was argued that the state discriminated on the basis of economic status or the use of a set bail schedule. But she took the opposite position in the case of Welchen v. Harris, writing in support of California’s laws. The foundation for both cases lay in the contention that the bail system created “wealth-based detention” and was, therefore, unconstitutional. In fact, Harris did next to nothing in her role as Attorney General of California to fix the highest bail schedules in the nation or otherwise repair a dysfunctional bail market that was the root of the problem to begin with. An examination of Harris’s home state illustrates exactly why her U.S. Senate bill is nothing more than fluff. California Senate Bill 10 calls for the enactment of many of the same laws Harris is pushing for the entire nation. However, no less a source than the Los Angeles Times said its implementation would cost “hundreds of millions of dollars” across a number of categories — and analysts working in the state legislature agree with this determination. It should be pointed out that this is only for California. When you realize we’re talking about bail reform for the entire country, one quickly comes to the conclusion that this will likely cost billions of dollars.

Suddenly, the utter insanity of the paltry $15 million indicated in Harris’ bill becomes crystal clear. Lest one think that it is the notion of bail reform that is under attack, it should be mentioned that Representative Ted Lieu (D-Calif.) has a bill of his own that addresses these same issues. However, Lieu’s bill is a very well-thought-out piece of legislation. Whether or not one supports what he proposes, it certainly merits consideration – in stark contrast to Harris’ effort. Perhaps most outrageously, Harris exhumes the terrible case of Kalief Browder. She claims that he is exactly the type of individual her legislation would aid. Browder was trapped in jail because he could not post bail and was so damaged from the experience that he subsequently committed suicide after he was freed. Numerous media accounts reported that Browder was unable to raise the money to be released. However, in actuality, he was on a probation hold for three years as a juvenile, making him ineligible for bail because of a prior conviction. It is completely unrealistic to believe that his family would not have been able to raise the amount of his premium — $300 total – if he had been able to legitimately meet the standards for bail. No matter how Harris wants to spin it, her ill-conceived legislation would have had absolutely no effect on the actual problems that caused Browder to be held needlessly. Yet she now exploits his tragic death to push for the expansion of preventative detention without the option of bail, wasting federal funds in the process. Ironically, it is this very type of system that led to Browder being stuck in jail, which resulted in his ultimate demise. Kamala Harris had the opportunity to effect genuine change in the bail system as California Attorney General, but did nothing but meekly play both sides of the issue. Citizens who believe her to now be the vanguard of the national bail reform movement should think again. Her efforts to convince her fellow U.S. senators to fork over $15 million to create “economic justice” is an insult to anyone who truly cares about making changes that will actually work.

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About Jeffrey Clayton, Executive Director of the American Bail Coalition: Jeff Clayton joined the American Bail Coalition as Policy Director in May 2015. He has worked in various capacities as a public policy and government relations professional for fifteen years, and also as licensed attorney for the past twelve years. Most recently, he worked as the General Counsel for the Professional Bail Agents of Colorado, in addition to serving other clients in legal, legislative, and policy matters. Jeff spent six years in government service, representing the Colorado State Courts and Probation Department, the Colorado Department of Labor and Employment, and the United States Secretary of Transportation. He is also a prior Presidential Management Fellow and Finalist for the U.S. Supreme Court fellows program. Mr. Clayton holds a B.B.A. from Baylor University, a M.S. (Public Policy) from the University of Rochester, N.Y., and a J.D. from the Sturm College of Law, University of Denver

(Posted: Wednesday, Aug. 30, 2017 at 8:30 PM EDT)