Aiming to assist indigent defendants in criminal court and save the state up to $190 million a year, policymakers are pushing for wider access to a program that allows people charged with low-level offenses to get out of jail without posting a large amount of bail.
Up to a quarter of the 41,000 inmates in Texas awaiting trials pose little threat to the public, according to data from Dallas and Bexar counties reviewed by Texas Judicial Council. But under current laws, those people are locked up because they can’t afford to post bail or have been flagged, perhaps unfairly, as flight risks.
A study by the Texas Commission on Jail Standards says that over the past 25 years, the percentage of jail inmates who are waiting for trial has risen from about 32 percent to 75 percent. Another study, by the Crime and Justice Institute, reveals that inmates who spend even three days in jail are more likely to lose employment and to report serious financial difficulty.
“Individuals who are low-risk should not be kept in jail awaiting trial,” Texas Judicial Council executive director David Slayton said. “Council is very convinced of the benefits, and that’s why we feel so strongly.”
In January, the council says it will lobby legislators to amend the Texas Constitution and introduce a presumption that people accused of crimes should get pretrial release, a measure it says would even the playing field between all defendants regardless of their ability to post bail. In a related proposal, the council says it will push judges to use a risk-assessment tool to measure one’s flight risk. The reforms would go into place by 2020, if not sooner, Slayton said.
Slayton said broadening access to pretrial bonds could end up saving tax payers $190 million. Reducing the jail population would save $250 million a year, but $60 to $70 million more would be needed for pretrial supervision.
Yet it’s unclear to what extent, if any, the proposed changes will be felt locally, as Travis County is already using a pretrial assessment tool and in 2015 reported a 90 percent appearance rate for those released on their own recognizance.
“I don’t think it’s so novel that it’s so far beyond what they’re doing already,” defense attorney Steven Brand said of the proposal. However, he praised expanding jail release because “I would like to see strides toward making personal bonds that much more accessible to all people.”
A personal bond offers jail release in exchange for a defendant agreeing to make all court appearances. If the agreement is broken, the defendant will be ordered to post bail.
The council is recommending the implementation a risk assessment that would calculate a person’s flight risk based on: age, the offense, other pending charges, prior misdemeanor and felony convictions, prior violent convictions, prior failures to appear in court, and prior sentences.
In May, Harris County announced it would implement such an assessment — the same one that is now employed in Arizona, Kentucky and New Jersey. It does not consider geography, so with all else being equal, a defendant with no ties to the area where the charge is filed is just as likely to be released as someone who lives in the community. Yet under these conditions, someone deemed to be high-risk based on past behavior could be denied bail even if the charge is a misdemeanor. Presently, only those charged with capital murder are denied bail in Texas.
Slayton said the biggest impediment to the council’s recommendations is that it would be “a pretty significant change to where Texas has been. The judge doesn’t have this information now.”
Retired Judge Jon Wisser said he’d like to see bond reform taken a step further to include a cost breakdown of pretrial conditions. Armed with information about the cost of, say, electronic monitoring, Wisser said, “judges could be more selective in what they’re enforcing.”
The council’s proposal leaves it up to the Legislature to assign additional funding for pretrial supervision, but notes that because counties will be the primary beneficiary of decreased jail costs, “one mechanism for funding would be that counties fully fund the supervision program.” The proposal acknowledges some small counties “might not realize enough reduced jail population to fully cover the cost of the supervision program.”
Other bond recommendations proposed by the judicial council include educating judges about their decisions and implementing data collection about pretrial release decisions.
Bail reform effort
In January, the Texas Judicial Council plans to ask legislators to make the following eight reforms to the state’s pretrial bond system:
- Implementing a pretrial risk assessment, which it says will decrease jail population and save taxpayers up to $190 million.
- Amend the Texas Constitution to provide for a presumption of jail release, leaving discretion to judge to use all existing forms of bail.
- Amend the Texas Constitution so that defendants with a high flight risk can be held in jail without bail, regardless of the charge. Presently, only those charged with capital murder are held without bail.
- Provide funding for pretrial supervision. Who foots the bill has not been determined, but it would probably be the counties.
- Provide funding to train judges on their pretrial decisions.
- Collect data on pretrial release decisions for later assessments.
- Authorize the Court of Criminal Appeals to adopt any necessary rules to implement the provisions pursuant to these recommendations.
- Provide for a sufficient transition period to implement the changes. The target year is 2020.