(as seen in California Political Review – Sept 11 2017)
By Jeff Clayton, Executive Director, American Bail Coalition
Most Americans would agree that some degree of bail reform is needed in our country. In fact, there are many dialogues currently taking place among policy makers representing all sides of the issue who are keen to make improvements to our current system. Unfortunately, rookie California Senator Kamala Harris has proven that she is now a true Washingtonian – big on grandstanding and short on positive influence by running a bill that would accomplish only a fraction of what is already being done.
Teaming up with Rand Paul, Harris has offered a new, supposedly bi-partisan plan to fix mass incarceration in this country. The upshot is that she thinks she can eliminate mass incarceration by giving U.S. Attorney General Jeff Sessions $15 million, which is less than a bloated federal budget rounding error, to dole out on a program for which he has enunciated no support.
Harris, however, missed two critical details. First, the Bureau of Justice Statistics stopped doing the very reports for which she is calling. Contrary to her position on bail reform, the data has already revealed that monetary conditions of bail actually ensure appearance and public safety. Second, the paltry $10 million she wants to spend over three years on further reforms is already in the federal budget – but multiplied by as much as fifty to 100 times. In sum, this legislation is an insult to everyone who works on bail reform, whether it is those who want to abolish all money bail or people who think the present system works pretty well. In reality, the bill is much more about making headlines – and keeping contributor donations flowing – than it is about actually accomplishing anything.
Harris has a history of holding conflicting legal positions on bail. In fact, during her tenure as California Attorney General, Harris did virtually nothing to correct the highest bail schedules in the land or do anything to stop the race to the bottom in the bail market that created the problem in the first place.
Just last year, while serving as the Attorney General for California, she was tasked with addressing the constitutionality of bail in the state. Two nearly identical federal lawsuits were filed, each alleging that its bail system was unconstitutional in that it created “wealth-based detention.” The premise of both cases was that they violated the equal protection and due process clauses of the Fourteenth Amendment to the constitution.
Harris took the side of the state in the case of Welchen v. Harris, writing that claims of discrimination on the basis of economic status from either the existing law or bail schedule did not violate the constitution. Yet incredibly, in Buffin v. San Francisco, she refused to defend the constitutionality of California law on exactly the same issue.
Closer scrutiny of Harris’s home state of California offers a prime example of why her U.S. Senate legislation is mere grandstanding. California Senate Bill 10 is a bail reform bill that would implement the very policies which Harris is calling for nationwide. According to analysts working at the state legislature and the Los Angeles Times, it would cost “hundreds of millions of dollars” in several different categories of costs – and that’s just in one state! Apparently, Harris believes that teaming up with Rand Paul to give Jeff Sessions $15 million, will somehow cover these costs, which could easily go into the billions of dollars nationally. It should be pointed out that Representative Ted Lieu (D-Calif) also has a bill on this issue – one that has some actual teeth. In contrast to what Harris has proposed, Lieu’s bill deserves legitimate consideration, regardless of whether one supports or opposes his legislation.
Adding insult to injury, Harris flaunts the tragic case of Kalief Browder, who she claims, is the just the type of person her bill would help. Browder could not escape jail due to his inability to post bail and ultimately committed suicide after eventually being released. Although it had been widely reported that Browder could not come up with the bail money to be freed, the reality was that he was on a non-bailable probation hold for three years as a juvenile due to a previous conviction. It’s a manipulation of reality to suggest that his extended family would not have been able to come up with the bail premium of $300 had he been bailable. Sadly, Harris’ legislation would do nothing to fix the actual problem that lead to Browder’s unnecessary detention. Yet, she now wishes to use federal dollars to push policies like those in New Jersey that expand preventative detention without bail, which is the very thing that kept Browder in Rikers Island and which eventually lead to his death.
Readers would be wise to consider Kamala Harris’ history before regarding her as the leader of national bail reform. If she actually cared about the issue, she would have done something substantive when she actually had the power to effect real change, rather than urging her fellow senators to hand $15 million to the Trump Administration to create “economic justice.”