Under Texas law, judges are required to consider other factors – including whether the person could be a potential danger to the public while out of jail, prior criminal history, severity of the crime, and the likelihood they will skip out on their court date, among others.
Additionally, Texas’ misdemeanor jail population is only about 9% of the total population being held in jail. Of these, about half are deemed mentally unfit for release, have holds for some reason, or high risk of fleeing or reoffending. This indicates that only 5% of the entire jail population is actually low income AND low risk, given that those charged with Felonies are considered higher risk because of the nature of the crimes that they have been arrested for with probable cause.
Bail is not intended to be a punishment for defendants, but to make sure they show back up for court. With a financial skin-in-the-game, bail agents are extremely motivated to ensure defendants are returned to justice, and have a much higher success rate of getting defendants to show up for court than those released without money bail. In Harris County, 43% of those released without bail under a federal judge’s order fail to reappear for court, compared to 5% released using traditional money bail.
Additionally, bail amounts are not set by bail agents – they’re set by the court after careful consideration of a defendant’s criminal history, potential danger to the public, severity of the crime and the likelihood of them skipping their court date.
This practice is already underway in Harris County. Defendants who are released without bail in Harris County and skip their court date are costing Texas taxpayers a whopping $1,775 per defendant, or an estimated $12.5 million per year. An alarming 43% of those released without bail later fail to appear in court, compared to a mere 5% rate among those out using traditional money bail.
The most important reason why we shouldn’t go the same route as New Jersey is that it would be an immediate threat to public safety. If dangerous criminals are released from jail with virtually no punishment and no one stopping them, who’s to say what they’re capable of doing while out roaming the streets? Unfortunately, many Texas victims have already paid the ultimate price.
Risk assessment tools have also proven to be racially-biased. They have been found to incorrectly designate African Americans as high risk for failing to appear in court, while incorrectly designating white defendants as low risk.
Risk assessment tools are unproven, unreliable computer algorithms that will never have the ability to definitively predict human behavior. It is more prudent to trust our seasoned, elected judges to set appropriate conditions for release, thus keeping our communities safe. This is a proven system that has worked for generations.
In a majority of cases, if a person isn’t a flight risk, is a low-level offender, is mentally deemed fit for release AND has no criminal history, they are released.
Presumption of innocence for all misdemeanors or felonies – regardless of other factors – is a dangerous precedent to set. Judges currently consider each case individually, and weigh a number of non-financial factors to determine conditions for release, including:
Seriousness of the alleged crime committed
Potential repeat threats to the alleged victim of the crime committed
Potential threats to the general public
Statements provided by the alleged victim or victim’s family regarding the danger the defendant poses
Strength of evidence for or against the defendant
Family and community ties
Record of appearances at trial
Previous occurrences of fleeing
Opportunity to flee
After weighing all of these factors, a judge can then determine the conditions of release.
has shown it has done little to actually help jail overcrowding.
The State of Kentucky is
often considered the gold standard for bail reform, yet since their adoption of such laws
in 2011, incarceration rates have been minimally effected, if not getting worse.
According to a study by George Mason School of law, Kentucky’s adoption of the risk
assessment tool has led to more rearrests, higher rates of defendants failing to reappear
in court, an increase in crime and little to no jail savings. The study notes “it is clear that
the increased use of risk assessments as a result of the 2011 law did not result in a
decline in the pretrial rearrest rate.”
In short, the State of Kentucky spends millions of dollars a year with no return on
investment. As counties across Texas debate the merits of overhauling the bail system,
they’d be wise to learn from Kentucky’s mistakes.
In 2017, an activist federal judge declared Harris County’s bail system to be unconstitutional, In that ruling, the judge ordered all misdemeanor defendants to be released within 24 hours – regardless of their ability to pay – and the results have so far been disastrous.
On average, 43% of defendants released under this ruling later fail to appear for court. Texas taxpayers are left holding the bag, as each defendant who skips out costs the county an estimated $1,775 per defendant.
Additionally, the increase in violent criminals roaming our streets has led many more defendants reoffending. For instance, in October 2017, a father of a two-week-old baby boy was arrested and jailed for assault after the new mother reported his abuse to law enforcement. After swearing he couldn’t come up with the $5,000 needed for bail, he was released. His girlfriend, an HISD elementary school teacher, was found dead just days later.