Two state lawmakers hope their bill – and a constitutional amendment – will speed up the process of releasing jailed defendants who are considered unlikely to skip their court date or become safety risks.
The proposed legislation would require judges to use an automated, pretrial "risk-assessment" system to measure those risks before making bail decisions. The goal is to allow more poor, non-violent and low-level offenders to be released on a personal recognizance bond — which doesn't require paying bail.
Senate Bill 1338 also would mandate that judges and magistrates make their release decisions within 48 hours of a defendant's arrest. It would be the district attorney's responsibility to ensure that happens, said state Sen. John Whitmire, a Houston Democrat and Senate Criminal Justice Committee chairman who filed the bill.
"We're doing away with bail being part of the punishment," Whitmire said. "You should not be held in jail 'cause you can't afford to get out. You sure as hell shouldn't plead guilty to something you didn't do, and I don't want families to have to continue to get payday lender loans or car title loans to get someone out."
Bail bond reform is arguably receiving the most attention it's ever had in a legislative session, with numerous bills under consideration this year and high-profile support. More research on the issue has helped raise awareness, said Dottie Carmichael, research scientist with the Public Policy Research Institute.
"On the one hand, we're understanding the downside of unnecessary detention, and on the other side there are more and more studies showing the effectiveness of risk-based release practices," she said. "And so there's a better way available to deal with those problems."
The bill also would require that when judges deny bail for a defendant, they have "clear and convincing evidence" that a defendant is a public safety risk or is unlikely to show up for a court date.
In theory, judges should weigh those factors before deciding whether to grant bail, but they don't always do so, said Whitmire, who's teamed up with Rep. Andrew Murr, R-Junction, to carry an identical House version of the bill.
The system benefits criminals who have money, Whitmire said.
"They've got resources, they post bond and go back to practicing their criminal business," he said. "So there's no risk assessment or no public safety factor in the issuing of a financial bond."
The lawmakers' proposed constitutional amendment would expand who can be denied bond, said Whitmire, who wants to see more violent offenders kept behind bars.
"Currently, you're entitled to a bond in the state constitution for everything but capital murder," he said. "Well, I believe that there are other circumstances where you should be denied bond."
The Texas Judicial Council — which Supreme Court Chief Justice Nathan Hecht and Court of Criminal Appeals Presiding Judge Sharon Keller lead — has advocated for all Texas courts to make pretrial release decisions with the help of the risk assessment system.
Hecht shared in February the story of a grandmother who spent about two months in jail because she couldn't afford to make the $150,000 bail. Her crime: shoplifting about $100 worth of clothes for her grandchildren.
"Was it worth it?" Hecht said. "No. And to add to the nonsense, Texas law limits judges’ power to detain high-risk defendants. High-risk defendants, a threat to society, are freed. Low-risk defendants sit in jail, a burden on
taxpayers. This makes no sense."
The Texas Judicial Council asked the Public Policy Research Institute at Texas A&M University to compare the outcomes of using a "risk-informed release system" to a "financial release system." The study compared Travis County's system of measuring each defendant's risk before making a pretrial release decision to Tarrant County's mostly money bond system.
The conclusion: using a risk-assessment system helps more accurately classify defendants as "high-risk" and "low-risk."
Bondsmen and bondswomen will oppose the bill because it cuts their flow of "easy money" from people who'd otherwise be out of jail on a personal bond because of their low risk, Whitmire said.
Whitmire's right about their opposition but wrong about the reason why, said Ken W. Good, a member of the Professional Bondsmen of Texas' board of directors.
"I think (the bill) turns discretion of the judges right on its head," Good said. "And I don't think that's good public policy."
Bondsmen and bondswomen haven't created the problem, Good said.
"It's illogical to say bondsmen make easy money, and there's people sitting in jail that can get out but that bondsmen aren't willing to bail them out," he said. "This is not a bondsman problem. This is a crime problem. And his proposed fix won't address the problem."
Read more stories about the Texas criminal justice system:
- Grand jury reform legislation currently before lawmakers would allow suspects' attorneys to be present during questioning and would prevent prosecutors from going to another grand jury if the first one declines to indict – unless there's new evidence.
- Thousands of Texans are at risk of being arrested at any given moment for not paying fines often related to traffic offenses or other city ordinance violations, according to a recent report.
- The civil asset forfeiture debate in Texas pits property rights advocates against law enforcement. Critics say the procedure deprives citizens of property without due process. Law enforcement officials say they are stopping crime.
Disclosure: Texas A&M University has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors is available here.