Change in bail policy is just a Band-Aid
Amid intensifying concern over a surge in homicides, the Harris County Bail Bond Board this month took a step designed to help stop the bloodshed, requiring defendants charged with violent felonies to pay bail bond companies 10 percent of the bail amount set by judges.
Pretrial defendants accounted for 7 percent of Houston’s homicides from 2013 to 2020, so while this is just one piece of a larger crime crisis, families of victims in these and subsequent cases understandably pushed for the change. But in part due to the constraints of state law, the board had virtually no alternative than a Band-Aid solution that at best only remediates a small part of the pretrial problem, with potential side effects. The “system” still needs major surgery to deliver public safety and due process.
This makeshift measure seeks to halt the literal bleeding associated with at least 231 deaths linked to crimes by people awaiting trial between 2013 and 2020. Despite efforts to blame the use of “personal recognizance bonds” that do not require payment, more than three-quarters of these homicides were associated with defendants for whom money bonds were set. Two defendants in homicide cases were granted solely a personal recognizance bond while charged with a violent crime.
The board’s action helps to the extent that it shifts power away from unelected bail bondsmen to judges who are regularly held accountable by voters. Bail bondsmen stand to make more money — especially relative to their time spent — on defendants with high bail amounts, which are typically those charged in cases with more serious crimes and where prior records reflect a higher risk.
Consequently, some such defendants have obtained release by giving the bondsman as little as 2 to 3 percent of their bond. The new 10 percent policy rightly gives judges back a modicum of control over bail.
But the new policy is hardly a panacea. One drawback is that some poor defendants who may be innocent remain in jail while others released through a bondsman and are later exonerated lose even more money.
However, with or without the 10 percent cap, the current system is flawed: Bondsmen keep their fee as profit even if the defendant is rearrested for a new offense while awaiting trial. In these cases that have rightly captured the public’s attention, the bondsman is typically released from the bond upon rearrest and keeps the fee. Bail bonding is not premised on public safety, but only on the theoretical guarantee that, if the defendant absconds, the bondsman must surrender the fee to the county. Yet absconding is actually a relatively rare problem regardless of method of release. The largest study on court appearances to date found that between 1990 and 2004, of the minority who missed a hearing, 94 percent of defendants appeared in court within a year after their missed court date. Failures to appear can be effectively addressed with text messaging reminders, evening and weekend court, rescheduling of hearings for legitimate reasons, such as illness or child care, online or through an app, and virtual hearings that have almost eliminated failures to appear during the pandemic.
Even when it comes to absconding, commercial bail is not necessarily effective since bondsmen are often able to use favorable state laws they have helped shape to wiggle out of much or all of the forfeiture amount even when defendants disappear. Though current data is scarce, deadbeat bondsmen in Dallas County and Harris County have, in prior years, owed tens of millions that is effectively uncollectible. Another flaw is that, if the defendant is exonerated, the defendant still has lost the fee.
These realities should prompt state lawmakers to override an old Texas attorney general’s opinion to make clear that counties can skip the commercial bail middleman by issuing their own cash deposit bonds. Under this system, defendants post funds or collateral, such as a car title or jewelry, that the county returns after they make their court appearances.
More fundamentally, a Texas A&M study demonstrated that pretrial release decisions based on money, rather than an objective public safety assessment, resulted in a higher percentage of released defendants being rearrested for a new offense. Other approaches, such as better tailoring pretrial supervision conditions based on individualized assessments and expanding pretrial access to mental health treatment, have a better record of success.
Additionally, lawmakers should enact a constitutional amendment that would expand the authority of judges to deny bail in appropriate cases. The current provision is overly narrow insofar as it applies to capital murder but not ordinary murder and other serious violent crimes and limits the pretrial detention period to 60 days.
At the same time, safeguards must limit denial of bail to cases in which there is clear and convincing evidence to support both guilt and a finding that no set of pretrial conditions could reasonably ameliorate the danger posed by a defendant assessed to present a high risk of committing a violent offense. Defendants denied bail must also be provided with high quality representation in the initial proceedings and appeals.
Such an amendment could render the 10 percent Band-Aid solution superfluous by freeing judges from resorting to high bail amounts with the hope that they will keep defendants in jail. Intentionally setting unaffordable bail instead of denying bail entrenches inequities and circumvents the defendant’s right under the Texas Constitution to expeditiously appeal denial of bail.
Beyond the amendment, lawmakers must also address the other end of the spectrum — those who pose little risk of violence but languish in jail because they cannot afford low bail amounts. In many such cases, the factors that mitigate their risk, such as stable employment and housing, are disrupted by jail stays, leading to worse public safety outcomes. Even with its felony bail problems, Harris County’s 2019 local changes curtailing the use of money bail in most types of misdemeanor cases have been effective both in controlling the jail population and maintaining high rates of reappearance with low rates of rearrest.
To build on that progress, Texas’ 2021 bail reform legislation needs updating to, along with the aforementioned amendment, give local jurisdictions more flexibility in the use of assessments to inform pretrial decisions by judges and magistrates, require any financial conditions be affordable and establish a presumption of release without financial conditions for low-risk, nonviolent defendants.
Despite good intentions, longstanding state law perpetuates pretrial outcomes based on ability to pay, rather than public safety and due process. Under Republican Gov. Chris Christie, New Jersey adopted successful, comprehensive reforms that not only expanded judicial authority to detain the small share of highly dangerous defendants, but also invested significant resources in pretrial services and technology to safely supervise the bulk of defendants released without financial conditions.
Harris County understandably applied a Band-Aid, but Texas shouldn’t settle for a stopgap solution when a cure is available.