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Senators form an odd couple on cash bail reform, changes already getting a look in California

Sen. Kamala Harris, D-Calif., reacts during a Senate Intelligence Committee hearing about the Foreign Intelligence Surveillance Act, on Capitol Hill, Wednesday, June 7, 2017. (AP Photo/Alex Brandon)
Sen. Kamala Harris, D-Calif., reacts during a Senate Intelligence Committee hearing about the Foreign Intelligence Surveillance Act, on Capitol Hill, Wednesday, June 7, 2017. (AP Photo/Alex Brandon)
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An effort to reform the nation's cash bail systems has prompted a surprising political partnership between Senators Kamala Harris and Rand Paul.

The liberal Democrat from California and the conservative Republican representing Kentucky joined together on Thursday to introduce legislation to encourage states to adopt assessment tools, looking at a person's risk to the community and chance of flight, instead of how much cash they have on hand to pay bail.

Harris and Paul want to authorize $10 million in grant money to create pilot programs in 6 states to test what works and what doesn't in pre-trial hearings. There would also be a data collection component. The bill includes $5 million to launch a program tracking the exact number of people in the U.S. who are awaiting trial, but sitting in jail because they can't post bail.

"More than 450,000 Americans sit in jail today awaiting trial and many of them cannot afford “money bail,'" Harris said in a statement. "In our country, whether you stay in jail or not is wholly determined by whether you’re wealthy or not – and that’s wrong."

In California, there's a bill making its way through Sacramento that could implement many of the reforms recommended by this new liberal-conservative Senate alliance.

SB 10, authored by State Senator Bob Hertzberg (D-Van Nuys), would throw out the state's current cash bail system in favor of pre-trial risk assessments. The bill would also create a program to encourage low-level defendants to show up to court dates. Hertzberg partnered with Assemblyman Rob Bonta (D-Oakland), who introduced an identical bill in the Assembly.

SB 10 has passed the Senate and the Assembly Public Safety Committees. The next hurdle is the Assembly Appropriations Committee. A deadline looms: this year’s legislative session ends on Sept. 15.

On Friday, Hertzberg talked to KPCC's Take Two about his legislation and the federal effort Senators Paul and Harris are championing. 

Q: How does the bail system works now in California, and why do you see a problem with it?

Basically, if you get arrested, there's a little chart on the wall in the police department or the county jail. That chart looks at the code section that the police officer charged you with, and next to it is a number. If you pay that price, you get out of jail. It's that simple. If you don't have the money, you stay in jail until you're arraigned and the court will look at you. It's called the bail schedule. So if you get in a beef with the police officer and they charge you with something worse, the price goes up.

So let's assume it's a $50,000 bail. Unless you have $50k in cash, you go to a bail bonds person, and you post $5,000, roughly...and then they put up the bond. And you're out immediately. Sometimes just within a few hours. Drunk driving case, you get in a bar fight, whatever the situation is. So the bottom line is, if you've got the cash, you've got freedom. If you don't have the cash, you sit in jail.

Q: A lot of people don't have that cash?

A study by the Federal Reserve showed that 46 percent of people in the country don't have $400 on hand. They have to sell something or go out and borrow it from a friend. 

Here's what's happened...The bail schedules have gone up and up and up. Because judges are worried they will have a Willie Horton situation, so the numbers go high. Each county sets the bail differently, so in a county that has a meth problem, a meth arrest is $250,000, and in a county that doesn't have a meth problem, it's $50,000.

There's a new system in town that works. It works in Kentucky, it works in Santa Clara County, it works with the federal government. Basically, you can take a test, we can look at your background, and we can determine if you are a flight risk or a public safety risk pretty well.

63% of the people sitting in jail are what we call pre-trial detainees. Meaning they haven't been convicted of anything, and they're sitting in jail costing anywhere from $116 a day in Los Angeles to $215 a day in northern California for the taxpayers. It ruins their lives. They lose their jobs. Sometimes they don't even get charged. Or they sit there and cop a plea just to get out.

Q: You're talking about using pre-trial risk assessments instead of cash bail. Isn't that expensive?

Yes and no. There's a county in Washington that does it in 8 minutes. In Santa Clara County they do pre-trial assessments. In 6 months they've saved $33 million. It's like a probation. You monitor, you call, you stay on top of people. The average rate of people not showing up is 20 percent in California. [In Santa Clara County] their rate of return, of showing up to court, is 95.5 percent. So it works.

It seems to me pretty simple, except one big gigantic problem. There is an industry that's built up around this cash bail system. 

Q: The bail bond industry is very powerful. It's very well-funded. How do you overcome their opposition?

It's hard. They're spending hundreds of thousands of dollars a month hiring every fancy lobbyist you can find in Sacramento. Coming up with every angle they can possibly come up with. They're a formidable force. 

Q: Is there a way to work with the bail bond industry? Is there a role for them under the bill you're proposing?

Of course. The Constitution of California says that people have a right to bail. The United States constitution says people have a right to bail. But it says bail shall not be excessive. You don't look at a number on a piece of paper and say, 'well, that's the number.' You look at a person's circumstance. Are they a risk? And if you're going to let them out, what's enough money that will make them to come back, but not enough money that you keep them in jail unjustly?

Q: What do you make of the proposal by Senators Kamala Harris and Rand Paul? 

I love it. And I totally expected it. We've seen this left-right coalition come together before in California. A whole host of conservatives supported Governor Brown's reform on Prop. 47. [Ed: Proposition 47 is a ballot measure passed by CA voters in 2014 that reduces certain felonies to misdemeanors.] ...It really is a place where people who are more libertarian come together with people who are more progressive. I love it. We're reaching out to conservative groups.

This interview has been edited for space and clarity. Please click on the blue media player at the top of the page to hear the conversation.