Debtors prisons and bail reform: TX Judicial Council taking up heady issues

The Texas Judicial Council this morning approved changes to court collections programs aimed at reducing incarceration of low-income Texans due to nonpayment of fines, but not without a fair amount of controversy and substantial changes to the original version of the rules. Buzzfeed published a great story earlier this week describing the backlash of the bureaucrats in response to them.

Texas Supreme Court Chief Justice Nathan Hecht declared that the rules were conceived in response to the USDOJ report on Ferguson, MO last fall. The national Conference of Chief Justices and Conference of State Court Administrators formed national task force on the topic, which includes Justice Hecht. The conservative American Legislative Exchange Council, he approvingly noted, recently adopted a resolution encouraging reform in these areas. And he found it remarkable that support for the changes came from ideologically diverse groups from the ACLU and the Austin City Council to the Texas Public Policy Foundation, conservative state Sen. Don Huffines, and Texas Association of Business CEO Bill Hammond (who just announced he'd retire at the end of the year), all of whom favor reducing the burden from fines and fees on indigent defendants.

Here are the comments on the rules and here is a document articulating how the Office Of Court Administration changed them in response. Grits has not closely enough vetted the changes to judge exactly how watered down the final rules are compared to the original version. (I emailed our friends at the Texas Fair Defense Project for an assessment and will update this post when I hear back.) But judging from the continued pushback, it appears they've retained some teeth. The chief justice pushed through the changes despite naysayers in the peanut gallery, not to mention a few "no" votes on the council who wanted to re-publish the amended rules. They take effect January 1st, 2017, though some courts have pledged to adopt them as soon as Sept. 1st in order to help the OCA evaluate how they work in the field.

Related: From Texas Monthly, "Texas has a debtors prison problem." Good article, which mentions a related analysis from Houston of which Grits was unaware:

In May, a committee organized by Mayor Sylvester Turner released a damning report that found that the city uses its municipal court “as a profit center.” Of the court’s 169,000 convictions in 2014, only 2,800 were given the option to pay their fines through community service, and only six cases saw their fines waived. As the report notes, nearly 25 percent of Houston’s population is below the poverty line, and they estimated that “at least 30,000 people” should have been given the option of community service. “Attempting to finance the city budget on the backs of the poor criminalizes poverty and destabilizes lives, ultimately doing more harm than good,” the report found.

Pretrial/bail recommendations coming
The Judicial Council also heard from its Criminal Justice Committee which will make recommendations in October related to the bial system. Twenty five years ago, opined the chair, 32 percent of jail population were presumed-innocent people being held pretrial. Today that number is 75 percent, he said. According to the Texas Commission on Jail Standards, the average cost per day to house these inmates is $60.12. At that rate, it costs more than  $1 billion per year for pretrial incarceration, or around $2.5 million per day. He called the situation a "perfect storm ready for change."

Researchers from A&M are doing a report on Tarrant and Travis Counties, he said, and their findings so far corroborate the idea that far fewer people could be jailed pretrial without harming public safety..

In October, the committee will release recommendations suggesting that the Legislature require misdemeanor defendants to be assessed with valid risk assessment instrument prior to appearing before a magistrate. There should be a presumption through statute for pretrial release on personal bond, leaving judges with discretion to decide the evidence before them rebuts that presumption. They hope the new system would allow release of "high numbers of people who have little risk of reoffending and little risk of flight." The Lege should pony up to fund supervision for pretrial defendants and magistrate training, he opined. The Court of Criminal Appeals would create rules to implement these processes.

Related: From the Houston Chronicle, "Bail system is unjust and undermines public safety."

Judicial Council Lege agenda
The council reviewed areas where they intend to make legislative recommendations next year, though nothing has yet been finalized. Here's the list of resolutions they're considering.