Fair and effective justice reforms are possible this session

This month, the city of Keller agreed to a $200,000 settlement with Marco Puente in a suit alleging excessive use of force that was caught on camera. Puente was arrested after filming police interacting with his son, Dillon, who was pulled over for making a wide turn. Dillon became one of 64,100 Texans arrested in 2019 for a Class C misdemeanor.

Class C misdemeanors, which are primarily traffic violations, cannot result in a jail sentence, and arresting people solely for such infractions is unjust. In 2015, Sandra Bland was arrested and ultimately died in jail after being pulled over for failure to signal. The real failure is that this affront to liberty persists, especially as many lockups struggle with capacity and COVID-19.

While the Texas House advanced legislation last session to preclude arrest for Class C offenses unless there is a breach of the peace, the Senate declined to act. Fortunately, there is strong bipartisan interest in remedying this and broadly addressing alternatives to arrest and pretrial justice.

Sen. Paul Bettencourt, R-Houston, has refiled legislation giving officers discretion to issue a citation and notice to appear in trespass cases. Rep. Ina Minjarez, D-San Antonio, proposes to include other offenses in existing cite-and-summons law, such as low-level drug possession. Also, HB718 would allow police to divert individuals arrested for other Class B misdemeanors if guidelines are adopted by local judges. This could facilitate off-ramps from jail, such as sobering and mental health crisis centers.

Now an individual taken into custody must appear within 24 hours before a magistrate, but by allowing virtual appearances, HB689 could facilitate greater use of treatment alternatives to jail. Such avenues for police diversion were recently recommended by the National Commission on COVID-19 and Criminal Justice, a diverse panel of experts that included Dallas Mayor Eric Johnson and former U.S. Attorney General Al Gonzales.

The most complex issue is bail. Currently, money often drives decisions, rather than due process and public safety. This means many low-risk defendants languish in jail because they cannot afford bail for minor offenses, while wealthy but dangerous defendants can buy their way out. Chief Justice Nathan Hecht has wisely warned lawmakers that costly federal litigation may ensue if lawmakers don’t act.

In 2017, New Jersey implemented a comprehensive solution that included a statewide validated risk-assessment instrument to evaluate the flight and safety risk of each defendant, a presumption against money bail, a constitutional amendment to give judges more discretion to deny bail, and the rollout of the training, technology and pretrial services needed to make better judicial decisions and safely supervise defendants in the community. The results have been positive in terms of both crime and jail costs.

The Texas Constitution prohibits denial of bail for murder absent prior convictions, though it is allowed for capital murder. This leaves judges who seek detention in serious cases involving high-risk defendants aiming to set unaffordable bail. It enables dangerous but wealthy defendants to purchase release.

To be sure, Texans are innocent until proven guilty and the vast majority of defendants should be released prior to trial with the least-restrictive conditions necessary for public safety and reappearance, including highly effective text reminders of court dates. A 2017 Texas A&M study found that utilizing actuarial instruments to inform judicial decision-making coupled with pretrial supervision when warranted resulted in lower rearrest and detention rates.

These risk assessments draw on objective data, such as whether the defendant previously absconded or had prior violent convictions, and the instrument piloted by the Texas Supreme Court excludes socioeconomic factors, such as employment status, that overlap with race. Similar iterations in other jurisdictions have been proven to reduce racial disparities while protecting public safety.

The litigation faced by counties includes a case filed by the family of Fernando Macias in December over his death in the Bexar County jail. Macias, a defendant with serious mental illness, passed away after losing 104 pounds and developing bed sores.

There is no panacea for striking the difficult balance between protecting the public and avoiding the disruption and dangers associated with incarceration. But instead of deferring to the unpredictable results of litigation, Texas lawmakers should take the lead in making the front-end of the system fairer and more effective.