No escaping need for balanced bail reform
When Texas Democrats fled from Austin, they not only stopped the voting bill but many other bills including changes to the state’s bail system. While election legislation garners most headlines, policymakers can’t run from the urgency of pretrial reform to properly balance individual liberty and public safety. Gov. Greg Abbott was right to put it on the agenda and lawmakers should use this time to refine current proposals.
The Texas Constitution doesn’t allow judges to deny bail to a person charged with even heinous offenses such as murder and rape, allowing it only for capital murder. This leaves judges seeking to detain people accused of some of the most serious crimes in the unenviable position of setting a high bail amount they hope defendants cannot afford.
Using ability to pay to determine release is not only inequitable, but sometimes ineffective as well. Wealthy but highly dangerous defendants can purchase their release, while low-risk defendants charged with relatively minor offenses often languish in jail for months, unable to afford bail as low as $500. A recent Houston Chronicle investigation revealed the number of new charges against defendants out on bond tripled from 2015 to 2020. Some of those new charges — a number that is small relative to the total awaiting trial — include murder.
The recipe for successful reform is straightforward: a carefully limited expansion of the constitutional authority of judges to deny bail paired with a requirement that any bail amount be affordable and based on an individual analysis.
Identical bail reform proposals in the disrupted special session, Senate Bill 6 and House Bill 2, include worthwhile provisions to create a statewide data system so all courts have access to relevant information at pretrial proceedings, such as whether the defendant has previously failed to appear in court or has a prior violent conviction. These bills incorporate these factors into a “public safety report” but prohibit the use of any score or risk rating tied to them. Nonetheless, this information alone will help judges make better decisions, and the provisions for training jurists and tracking implementation are welcome.
However, there are several ways to strengthen the legislation. Judges not only need more information, but more options beyond pretrial detention and release without any conditions. One laudable feature of the current proposals is language requiring the least restrictive conditions needed to ensure reappearance and public safety, but personnel and technology are critical to enforcing conditions. Accordingly, pretrial services, which are absent in most rural Texas counties, should be expanded.
Pretrial services entail both interviewing defendants to help courts customize conditions and overseeing their implementation, which can include alcohol-monitoring devices and even a more comprehensive 24/7 sobriety program for repeat drunken driving defendants and protective orders and working with victims in cases of intimate partner violence. So long as conditions are narrowly tailored to each defendant, these services have been demonstrated to increase reappearances and reduce rearrests, while giving courts assurance to release more defendants.
One innovation that is helping fill in the spectrum between detention and release without conditions is phone apps, which can connect defendants with job placement assistance, housing and treatment for mental health and substance use disorders and verify their participation. In the regular session, Texas moved in this direction through House Bill 4293, which authorizes a pretrial text reminder system that has successfully increased reappearance rates in other states. The cost is minimal, and lawmakers need to appropriate funds to implement this bill.
There are also other ways to improve current proposals. Provisions that bar no-cost “personal bonds” for certain offenses could, in the absence of a requirement that bail be affordable, exacerbate current inequities. Among the situations in which Senate Bill 6 would override judicial discretion by banning personal bonds are a misdemeanor case involving two students in a dorm room where only a verbal threat is alleged, and a felony case alleging accidental, minor injury to an elderly person or child because of a failure to act.
The impetus to prohibit personal bonds ignores data showing that paying money to a bondsman does not affect rearrest rates. In fact, bail bondsmen only theoretically forfeit the bond if their “client” skips court, but not if they are rearrested.
Additionally, language arbitrarily limiting nonprofit bail funds is troubling. A survey found 5 of 7 returned at least 95 percent of defendants to court, with the other two at 80 percent or higher. Also, counties should have flexibility on whether to generate the “public safety report” in all nonviolent misdemeanor cases. If there are not sufficient court personnel to rapidly produce reports and conduct individualized hearings based upon them, the release of defendants charged with marijuana possession and other high-volume minor infractions could be unnecessarily delayed. Research has found that defendants can lose their jobs and, therefore, become even more of a risk after just a couple of days in jail.
As for the constitutional amendment proposals that expand judge’s ability to deny bail for some violent and sexual charges, the identical Senate Joint Resolution 3 and House Joint Resolution 1 encouragingly include safeguards added during negotiations, such as the requirement of a written order denying bail. However, they should be clarified to apply the clear and convincing evidence requirement not only to the need for detention, but also to evidence of the defendant’s guilt. This change would reduce the chance that people who are not ultimately convicted are held for months based on the low probable cause standard for arrest.
Finally, courts face massive, pandemic-induced case backlogs that delay justice for victims and defendants alike. Bail reform could help by providing courts with more tools and authority, especially if a small portion of $16 billion in unspent federal pandemic relief funds was allocated for court staff and technology.
Balanced bail reform is an opportunity for lawmakers to not merely oppose defunding public safety, but to advance it.