Bail failure requires more than a band-aid

Amid growing concerns over a rise in homicides, the Harris County Bail Board this month took action to help stop the bloodshed, forcing defendants charged with violent crimes to pay bail companies $10 % of the amount of the deposit fixed by the judges.

Pretrial defendants accounted for 7% of Houston homicides from 2013-2020, so while this is just one piece of a larger criminal crisis, the families of victims in these and subsequent cases understandably pushed for change. But in part because of the constraints of state law, the Bail Board had virtually no alternative but a band-aid solution that, at best, only solves a small part of the problem before trial. , with potential side effects. The “system” still needs major surgery to ensure public safety and due process.

The makeshift measure aims to stop the literal bleeding associated with at least 231 crime-related deaths by people awaiting trial between 2013 and 2020. Of these killings were associated with defendants for whom monetary obligations had been set . Two defendants in homicide cases only got a personal recognizance while charged with a violent crime.

The Commission’s action helps in that it shifts power from unelected bail guarantors to judges who are routinely held accountable by voters. Bail serfs are expected to make more money – especially relative to the time they spend – on defendants with high bail amounts, which are usually those charged in cases with more serious crimes and where previous records reflect higher risk. Consequently, some of these defendants have obtained release by giving the surety as little as 2-3% of their bond. The new 10% policy rightly gives judges some modicum of control over bail.

But the New policy is hardly a panacea. A downside is that some poor defendants who may be innocent remain in jail while others released by a surety and later exonerated lose even more money.

However, with or without the 10% cap, the current system is flawed: serfs keep their fees as profit even if the accused is re-arrested for a new offense pending trial. In those cases that have rightly captured the public’s attention, the surety is usually released from bond upon re-arrest and retains his fees. The bond is not based on public safety, but only on the theoretical guarantee that, if the defendant absconds, the surety must remit the costs to the county. Yet leakage is actually a relatively rare issue, regardless of release method. The largest study of court appearances to date found that between 1990 and 2004, among the minority who missed a court hearing, 94 percent of defendants appeared in court within a year of their missed court date. Failures to appear can be dealt with effectively with SMS reminders, evening and weekend courtthe postponement of hearings for legitimate reasons, such as illness or child custody, online or through an app, and virtual hearings who have almost eliminated failures to appear during the pandemic.

Even when it comes to getting away, trade bail is not necessarily effective since serfs are often able to use favorable state laws they helped shape to evade a lot or all of the amount of the confiscation even when the defendants disappear. Although current data is sparse, the deadbeat serfs of Dallas County and Harris County have, in previous years, owed tens of millions which are effectively uncollectible. Another flaw is that, if the defendant is exonerated, the defendant has always lost the costs.

These realities should prompt state lawmakers to overrule a former Texas attorney general opinion to clarify that counties can bypass the surety’s commercial intermediary by issuing their own cash deposit bonds. Under this system, defendants deposit funds or collateral, such as a car title or jewelry, which the county returns after appearing in court.

More fundamentally, a Texas A&M study demonstrated that pretrial release decisions based on money, rather than an objective assessment of public safety, resulted in an increase in the percentage of released defendants who were re-arrested for a new offence. Other approaches, such as better adapt the conditions of supervision before trial based on individualized assessments and expanding pre-trial access to mental health treatmenthave a better track record of success.

In addition, lawmakers should pass a constitutional amendment that would expand the power of judges to deny bail in appropriate cases. the current layout is too narrow in that it applies to capital murder but not ordinary murder and other serious violent crimes and limits the period of remand to 60 days.

At the same time, safeguards should limit the denial of bail to cases in which there is clear and convincing evidence to support both guilt and a conclusion that no set of pretrial conditions could not reasonably mitigate the danger posed by an accused considered to be at high risk of committing a violent offence. Defendants who have been denied bail must also be provided with high quality representation during initial proceedings and appeals.

Such an amendment could make the 10% band-aid solution superfluous by freeing judges from using high bail in the hope that they will keep defendants in jail. Intentionally setting unaffordable bail instead of denying bail entrenches inequality and circumvents the defendant’s right under the Texas Constitution to quickly appeal the denial of bail.

Beyond the amendment, lawmakers also need to tackle the other end of the spectrum — those who pose little risk of violence but languish in jail because they can’t afford low bail. In many cases, the factors present that mitigate their risk, such as stable employment and housing, are disrupted by stays in prison, resulting in worst public safety record. Even with its felony bail issues, Harris County’s 2019 local changes limiting the use of bail in most types of misdemeanor cases were efficient both to control the prison population and to maintain high reappearance rates with low re-arrest rates.

To build on this progress, Texas’ 2021 Bail Reform Act should be updated to, with the aforementioned amendment, give local jurisdictions more flexibility in using assessments to inform pre-trial decisions by judges and magistrates, require all financial terms to be affordable, and establish a presumption of release without financial conditions for low-risk and non-violent defendants.

Despite good intentions, the state’s longstanding law perpetuates pretrial outcomes based on ability to pay, rather than public safety and due process. Under Republican Governor Chris Christie, New Jersey adopted successful comprehensive reforms which not only expanded judicial authority to detain the small proportion of highly dangerous defendants, but also invested significant resources in pre-trial services and technology to safely oversee the bulk of defendants released without financial conditions .

Harris County naturally applied a band-aid, but Texas shouldn’t settle for a stopgap solution when a cure is available.

Marc Levin, Esq. is the chief political adviser to the Criminal Justice Council and can be contacted at [email protected]

Comments are closed.