Monday, June 27, 2016

New White Paper on pretrial release and bail reform in Texas

Under my (Michele Deitch's) supervision, graduate students at the LBJ School of Public Affairs wrote a series of policy briefs in response to issues raised at the University of Houston's Symposium on Police, Jails, and Vulnerable People held this past January and announced previously on this blog. These briefs provide useful background information and practical policy recommendations for Texas to consider adopting in the 2017 Legislative Session.

The first policy brief we've released, Risk Not Resources- Improving the Pretrial Release Process in Texas, is related to pretrial practices in Texas. It looks like pretrial reform has some traction at the Lege and we expect this brief to be a welcome resource for people interested in thinking about what steps need to be taken to improve our ineffective bail system.

A few highlights from the report:

1. The only way to have a fair pretrial system is to evaluate people based on their risk of missing court or getting re-arrested. There are modern risk assessments (most notably, the PSA-Court developed by the Arnold Foundation, which Harris County will begin using shortly) that can be performed quickly and inexpensively because they do not require a defendant interview, relying instead on information that booking officers should be looking up in any event.

2. Using risk assessment and releasing low-risk people is cheaper and more effective than the current bail system. Statistically, most people are likely to come back to court without the imposition of any conditions or the requirement of collateral. Counties spend millions of dollars every year locking up poor, low-risk people who are legally innocent and unlikely to cause any problems before trial. If we released those individuals and redirected a portion of those savings toward evaluating defendants' risk on the front-end and supervising the higher-risk folks who were released, we could decrease the total bill for the county without any negative public safety implications.

3. Texas needs a presumption of release with the least-restrictive conditions necessary to ensure the safety of the community and the defendant's return to court. This is the logical progression of the state's right to bail - we need to remember that bail was originally intended as a way to release people before trial, and our statutes should reflect that. Bail schedules requiring every arrested person to pay a cash bond to be released for even the most minor offenses are ineffective, unfair, and in the words of the US Department of Justice, "bad public policy."

A more functional pretrial release system will help prevent our jails from housing defendants who don't need to be there, make sure that defendants who pose a high risk to the community are either properly supervised or detained, reduce overcrowding, and save the county money.  But of course, there are other issues to be addressed as well if we want our pretrial system to be safer, fairer, and more effective.  Stay tuned for future policy briefs regarding diversion of people with mental health issues, jail safety and suicide prevention, and the need for improved oversight of Texas jails.

You can read Risk, Not Resources:  Improving the Pretrial Release Process in Texas, written by LBJ School graduate students Nathan Fennell and Meridith Prescott, here.


Anonymous said...

Great piece Michele, thank you!

One aspect I'd like for you to simply file away as the ramp up to the session goes on..... Money bail can also be used as a fulcrum by defense attorney's to secure payment to them before defendants are released.

Consider what happened to me and my spouse. He was arrested, given an absurd 1M (yes, MILLION) dollar bond by Bastrop County. The attorney he'd secured during investigation offered to allow me to "pay" my spouse's bond via the law firm using the only resource I had left.... my available credit on my credit cards.

When bond was reduced to 100k, I let the law firm make a 10k charge to my credit card. We were both too ignorant to understand that the lawyer had made my spouse sign over "ownership" of those funds at conclusion of the charges.

When the charging agency dropped those charges and re-filed other charges, the bond was then free to be dispersed. The new charges carried a personal recognizance bond. (YES, down from 1M!) Our attorney, a prominent Austin attorney, former head of the Austin or Texas bar, I forget which, then swooped in, withdrew from the case because we wanted to go to trial and not plead, and cashed the bond out. He effectively ripped us off of the 10k and got himself removed from the case. We'd already paid him 10k. Now he had 20k, and we had squat, including any real work on his part.

I filed a grievance with the bar, and of course, that went nowhere. Our attorney stole those funds from us - all because we were desperate to make bail/bond.

It's an easy thing for attorney's to do. I'd be willing to bet our former attorney has done it dozens of times. What an upstanding profession.

My point being, just be aware that (greedy-ass) defense attorneys will likely be working the back hallways to kill any attempts to get risk bail systems flushed.

Anonymous said...

This whole topic is just weird to me because it is being discussed in 2016. I was a pre-trial supervisor in the 6th Judicial District of Iowa in 1973. That is 43 years ago. To not have this in place is yet one more reflection on the draconian prison system in Texas.

Anonymous said...

Attorneys taking advantage incarcerated individuals by bonding them out then removing themselves form the case is nothing new. Texas is one of the few states that allows for attorneys to do bonds. the majority of states disallow it due to the conflict of interest that is inherent with bonding and representing the defendant. Attorneys always get away with not being forfeited by Judges because of their "relationships" with judges thus they rarely pay for their clients not appearing in court because judges issue a warrant but not a bond forfeiture warrant.

The pre-trial system, attorneys bonding out clients, corrupt bondsmen...all of these issues should be addressed accordingly and with respect to the best model available to address bail. Taking into consideration the various risk factors of each defendant should be a major factor on how a defendant should bail out - Pre-trial should not allow bail for violent crimes or repeat offenders, or individuals who have absconded but they do. Attorneys should not be in the business of bail and Bondsmen should be held accountable for their processes and procedures!

Anonymous said...

What a fantastic idea! We don't need to interview the defendants or their families because that takes time and costs money. We can use the "risk assessment" tool developed by the Arnold Foundation. We'll just have to overlook the strong racial bias in these tools but at least we can claim that they are locked up because of their "score" rather than their skin color.

Those who are released are likely to come back to court without the imposition of any conditions or the requirement of collateral. The proof of this is that there are no open felony bench warrants. Right?

After we try this out for a while we can take the next logical step and just close down all the jails. Think of the savings!

Anonymous said...

@9:14 While I appreciate your concern about racial disparities,the Arnold Foundation tool has been tested against racial bias and is found to be race-neutral (and gender-neutral, for that matter). See page 4 of []. This is NOT true of some privately created tools, like the one Northpointe has been selling across the country for years and was the subject of an alarming ProPublica story.

The number of open felony bench warrants is a reflection of the fact that the current system does a terrible job of determining who is likely to miss court and it does an even worse job of providing jurisdictions the (relatively simple and inexpensive) tools that have been proven to significantly improve appearance rates among higher-risk people. That's why pretrial reform that bases the release/detain decision on risk rather than resources is so important.

Anonymous said...

The Arnold Foundation tool will work right up until it doesn't.

Fugitives are not avoiding court and evading capture because their risk assessment number is wrong or because they didn't get a friendly text reminder. They are failing to appear due to lack of incentive and the absence of real accountability.

Roadsidebetty said...

Courts that offer cash bonds in much more reasonable amounts, that are returned back to the individual when they show up in court, seem to me to make the most sense. The current system is just a convoluted way for private business to reap the rewards and essentially it's a joke. Considering that the courts do not pursue defaulted bonds with the bail bonds companies it's a false! Bail bonds companies have a win win situation. When the current system has proven primarily to be ineffective, it makes sense we would adopt a more effective policy. I imagine that the bonds companies and their partners the big insurance companies will do their part to make sure nothing changes. Because of course they have an income they need to protect and like so many other scenarios personal interest rules in the end.