5 Necessary Components of any Bail Reform measure

An Open Letter to the 2021 Texas Legislature

I watched the 2019 legislature with great hope, convinced that the bipartisan call for meaningful bail reform in Texas would finally be answered. Ultimately, however, it was not. As such, I offer this open letter to 2021 lawmakers addressing why we need bail reform, and how to do it.

Discussing potential changes to the pretrial system at the Dallas County Commissioner’s Court in 2017.

First, the “why.” No one should be held in jail awaiting trial for the sole reason that they have the financial inability to pay. Should they be there if they are a danger to the community? Yes. A flight risk? Sure. Simply because they are poor? No. The opposite is also true: should a dangerous person who poses a risk to the community be able to get out of jail simply because they do have money? Most assuredly no.

I think Texans fundamentally agree with both sentiments. Here’s the problem: how can judges accurately make bail decisions? The simple answer is by giving them access to as much reliable information as possible, as early on in the process as possible. Here’s how:

  1. Equal Representation: The prosecution and defense should be present for the initial bail hearing. On one side, a prosecutor should be present to give the Court as much information as is known at the time about the facts of the offense, the history of the arrestee (including criminal history and performance on previous bonds, probation, or parole), and any information related to the well-being of a victim. On the other side, the arrestee should be represented by counsel whether they can afford one or not. That attorney can present as much information as possible regarding the background of the defendant that is not necessarily reflected in their criminal history: where they work, where and with whom they live, the well-being of their children, and where they will go if released among other things. The attorneys can also present any relevant facts that might explain either mitigating or aggravating circumstances of the alleged crime.
  2. Speedy, Public Hearings: These hearings need to happen within 24 hours of the arrest. They need to be open to the public, and findings need to be made on the record.
  3. Use of a Validated Risk-Assessment: Many courts across the country use a risk assessment tool. Background Information is collected and objectively scored with a view towards predicting the likelihood that a person would return to court. The higher the score, the more likely the person will abscond; the lower, the less likely. The value of a tool like this is that it is it is based purely on data; the danger is that if the data reflects racial inequalities, the score based on the data will, too. As such, any tool should be but one factor for a Court to consider, and not as an inflexible substitute for judicial discretion. (See the endnotes for a Harvard Law Review Article, and an excellent article by Beth Schwartzapfel from The Marshall Project). Courts should be required to collect, preserve and analyze data showing the successes and failures of bail determinations. That information should be publicly available. Every group with an interest in ensuring fairness and accuracy in pretrial release – private, academic, journalists – should be encouraged to analyze the data and share their findings in an effort to evaluate and improve the system.
  4. Notice to the Victim: Should an arrestee make bail, the victim of the alleged crime should be immediately notified.
  5. Alternatives to Incarceration: Keeping in mind that the purpose of bail is to ensure that the arrestee will return to court and not punish them for allegedly committing a crime, pretrial release departments should be properly staffed, funded and armed with reliable tools that ensure a return to court to answer the charge. Text reminders, more frequent check-ins with pretrial officers, and in the appropriate case, ankle monitors have all proven to be highly effective, less costly, and less intrusive on a person’s life than remaining in jail. Obviously, there are costs associated with these alternatives to incarceration, but those costs are far cheaper than the estimated 50-70 dollars a day per inmate jails cost taxpayers.

Our law says a person is presumed to be innocent until proven guilty. The law should also presume a person’s release unless they are proven to be dangerous or a flight risk. Pretrial release departments must be well-equipped with less restrictive alternatives to incarceration. Finally, the entire process should be transparent and continually analyzed.

Fundamental fairness and public safety demand that the release or continued detainment of arrestees should be solely based on conduct, not on access to resources. If you are a lawmaker, a future lawmaker, or know one, please let them know I’ll do whatever I can to help – be it sharing data and information from my courts, implementing pilot programs, or testifying a legislative hearings.

For More Information On Bail Reform Efforts:

Bail Reform and Risk Assessment: The Cautionary Tale of Federal Sentencing, Harvard Law Review, February 9, 2018. The article ultimately concludes, “If risk assessments are paired with adequate safeguards, sustained reductions in incarceration and progress toward equal treatment may be possible.”

In her article, “Can Racist Algorithms Be Fixed?” Beth Schwartzapfel points out that researchers from the Center for Court Innovation and the Arnold Foundation conclude, “if judges made [bail] decisions based primarily on the seriousness of the charges, then layered risk assessment [scores] on top of that, dramatically fewer people would go to jail, and the rate of racially-disparate falso positives would almost disappear.” You can find a number of links to the most authoritative articles on Risk Assessments here, at the Records page on The Marshall Project Website.

In his blog, Grits for Breakfast, Scott Henson writes this about the 2019 Texas Legislature’s efforts: “Bail Reform Blues: Bail reform died, but that’s probably a good thing. As Grits has described previously, the legislation in play failed to address constitutional concerns arising in federal litigation, and created a new, politicized advisory panel to monkey around in what should be evidence-based risk assessments. Texas is MUCH better off waiting to see what the courts do on this before legislating. Texas needs bail reform, but only if it’s done right. This legislation was a hot mess.” Here is his post on Texas’s bail reform bill from the end of the 2019 session, “Bail-bondsmen amendments made ‘reform’ bill actively harmful.”

For my own takes on Bail Reform, read this guest Op-Ed: “It is time to fix the Texas bail system,” wherein I call for a Texas Constitutional Amendment. You can also read this story from Fox 4 News in Dallas, “Bi-Partisan bill could get rid of money bail system:.”The push these days, and it’s a bipartisan push nowadays, is to make sure that the decisions regarding a person’s bail is based on risks and not their resources.” Finally, you can read WFAA’s Tanya Eiserer’s article, “Dallas County program to get more prisoners out on bond.”

In the coming weeks, I’ll share a proposed pre-trial order that I wrote in 2017 with David Slayton from the Office of Court Administration. I believe it to be a good starting point for a County like Dallas. We’ll save for another day an important component of any pre-trial release decision – the issue of preventive detention.