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Bail has been the answer to make sure someone arrested and charged with a crime can get out of jail and will still show up for trial. But a bill co-authored by Republican Senator Rand Paul and Democrat Senator Kamala Harris seeks to encourage states to eliminate the money secured bail system.
It's called the Pretrial Integrity and Safety Act of 2017. The unlikely pair says the money bail system has proven ineffective in protecting public safety and that pretrial detention, even for short periods, has unintended consequences on the person jailed and their family.
The current bail system is the target of criminal justice reform.
“The push these days, and it’s a bipartisan push nowadays, is to make sure that the decisions regarding a person’s bail is based on risks and not their resources,” explained Judge Brandon Birmingham, the presiding felony court judge.
D.C. and a handful of states have moved away from money secured cash bail system. The focus now is on gauging individual risks. The focus on pretrial release programs is gauging individual risks of a person and whether they are likely to offend again or not show up for trial.
Jeff Clayton is the executive director of the American Bail Coalition. He agrees reducing reliance on bail can make sense in certain cases but points to a lawsuit challenging New Jersey’s reformed bail system.
“That monetary bail has to be an option for a defendant to be able to post bail and get out of jail under the eighth amendment of the U.S. Constitution,” he said. “So I think it’s an open question at this point.”
Defense Attorney Cheryl Wattley also teaches at the UNT Dallas School of Law.
“Jurisdictions who use the bail schedule who, ‘If you get arrested for this offense, I don’t care who you are. I don’t care how long you've lived in this community. I don’t care if you've never taken a bus outside of your county. You still have to pay this amount of money,’” she explained.
“When folks say these bail schedules are unfair… Well, let’s think about this: if we use the risk assessment that Senator Harris wants to use, we're gonna consider people's prior crimes as a basis to oppose bail, not the conduct that they are alleged to have done.” Clayton said. “So which way is more fair?”
That’s the question states are now asking and trying to answer. Judge Birmingham has been contacted by Texas Supreme Court Chief Justice Nathan Hecht, a Republican who is a big believer in sweeping bail reform.
Hecht, Birmingham and others will go to Kentucky in October and learn how that states bail system is working without the traditional money secured bail.