Poverty isn’t a crime
The cash-based bail system in Texas remains an injustice the Legislature must address.
Bail bondsmen and other critics of legislation that would dramatically change Texas’ cash bail system have it backward.
They argue the proposed changes would allow dangerous criminals to roam the streets. Nope. If implemented correctly, the new system will make it harder for defendants accused of heinous crimes or who have extensive criminal records to get out on bail before trial.
Bipartisan bills sponsored by state Sen. John Whitmire, D-Houston, and state Rep. Andrew Murr, R-Junction, are titled the Damon Allen Act, in honor of the state trooper shot and killed on Thanksgiving Day 2017 during a routine traffic stop on Interstate 45 in Freestone County. Allen’s alleged assailant, Dabrett Black, had been indicted four months earlier for crashing his car into a police vehicle during a chase, but was free on $15,500 bail.
Whitmire and Murr’s legislation would reduce the likelihood of similar tragedies by requiring every county to use either an automated or similarly effective pretrial risk assessment system to assist magistrates and judges making bail decisions. Defendants assessed as flight risks or a threat to the community or their alleged victim could be denied bail pending a hearing. Defendants deemed lowrisk might be released on a personal recognizance bond or charged low bail amounts.
Using a risk-assessment process would help end the discriminatory nature of the current system, which allows defendants accused of the worst crimes to post bail while indigent prisoners charged with misdemeanors languish in jail until their trial date. That discrepancy led to a federal lawsuit challenging Harris County’s bail system, which is on track to be settled. The proposed agreement would allow most misdemeanor defendants to qualify for no-cash bonds.
A similar lawsuit challenging Galveston County’s cash bail system as unconstitutional describes it as an arbitrary, twotiered system of justice based on wealth. Judge Mark Henry testified that Galveston County is already trying to improve its bail system by requiring a bond reduction hearing for defendants within 48 hours of incarceration. But even 48 hours is too long to spend in jail if it’s only because you can’t post bail.
The suicide death of Sandra Bland in the Waller County Jail in 2015 came after she was unable to pay $500 to a bail bondsman to cover her $5,000 bail. She was found dead in her cell on the third day of her incarceration after being arrested for allegedly kicking a policeman following a traffic stop. Bland’s death led to a bail reform effort that died in the Legislature in 2017.
A similar outcome this year would please the Professional Bondsmen of Texas and the Texas Alliance for Safe Communities. Those organizations consider Murr and Whitmire’s bills a threat to the bail bond industry’s survival. “Risk assessment tools are unproven, unreliable computer algorithms that will never have the ability to definitively predict human behavior,” a TASC statement asserts. “It is more prudent to trust our seasoned, elected judges to set appropriate conditions for release, thus keeping our communities safe.”
That sounds reasonable until you remember that it was a judge who didn’t know all he needed to know about Trooper Allen’s alleged killer when he set bail at a modest $15,500. A risk assessment profile might have told the judge that Dabrett Black was arrested in 2015 for beating a Smith County sheriff ’s deputy. It also might have told the judge that Black, an Army veteran deployed to Iraq three times, was believed to have post-traumatic stress disorder.
A risk assessment system wouldn’t take the authority to make bail decisions away from judges and magistrates. It would give them the knowledge to make better bail decisions. It also might change some judges’ mindsets. Instead of poring over a printed, generic schedule of bail amounts for specific crimes, they might take more time to review the kind of life a defendant has lived before setting bond.
It’s too expensive to lock up people who don’t need to be locked up, especially if they are charged with misdemeanors unlikely to yield jail time if they are convicted. Sheriff Ed Gonzalez says it costs $87 a day each to house the 7,000 inmates in the Harris County Jail. Compare that to the 83 pennies a day it costs the county to supervise a defendant on pretrial release.
Setting bail isn’t rocket science; it’s a judgment call. Not everyone who posts bail will show up for trial. Many who can’t afford to pay bail would show up if released on a personal recognizance bond. It makes sense for judges to use a comprehensive, reliable risk assessment tool to help them make bail decisions. That might make the bail bond industry less lucrative, but lawmakers have something more important to worry about: public safety.