Bail reform, on blast

With the Harris County District Attorney now siding with plaintiffs in bail-reform litigation, a pivotal hearing before federal Judge Lee Rosenthal launched yesterday in Houston. Meanwhile, bail-reform legislation was finally filed yesterday in Austin. It was a big day for the topic.

It turns out, even the threat of a litigation-imposed settlement spurred some improvement: "As of last May, when the lawsuit began, only about 8 percent of the county's misdemeanor offenders received no-cost personal bonds - though that percentage has slowly grown. In October, 14.5 percent received personal bonds, county records show."

Re: Ogg, Grits liked this pithy analysis from Alec Karakatsanis, of the Civil Rights Corps, which is taking the lead in the bail litigation, on why Ogg backed plaintiffs' position: "Sandra Bland didn't have money, Robert Durst did. Prosecutors recognize the absurdity in that."

But the biggest news of the day on bail reform was the filing of long-awaited legislation on the topic. Grits has yet to go through the bill in detail or speak with experts about it, but UH law prof Sandra Guerra Thompson in an email offered these initial thoughts:

The Bill is Filed! The Bill is Filed! At long last, we have a bail reform bill filed in the Texas Legislature!!!! HB 3011 filed by Representative Andrew Murr of District 53 (comprised of several counties in the Kerrville area) and SB 1338 by Senator John Whitmire of Houston, the Dean of the Texas Senate and long-time criminal justice visionary. This bill will modernize Texas bail law and improve the lives of thousands across the state who find themselves in jail. The bill would implement a risk-based bail system, which would result in using jails only for those who present genuine public safety risks, while releasing the vast majority of people who may be safely released.

The bill codifies the vision of the Judicial Council, which worked for over a year to produce its well-reasoned Resolution and Recommendations to the Legislature. Last summer, Chief Justice Nathan Hecht gave eloquent testimony before the House joint meeting of the committees on County Affairs and Criminal Jurisprudence. On February 1, 2017, he made another powerful appeal for legislative reform in his State of the Judiciary speech.

The March of Progress! Once enacted, the modernized bail law would provide smaller counties with an automated risk assessment instrument, like those that have been implemented in the large and several medium-sized counties. I have learned that the Office of Court Administration has completed its report on a statewide survey of pretrial services which will be presented to the Texas Indigent Defense Commission next week. I look forward to reading the report and will summarize it in my next update.

Bail Reform will Save Lives. Had risk-based pretrial release been used a couple of years ago, it would surely have saved Sandra Bland’s life. It might also have saved the life of Vincent Dewayne Young who committed suicide in the Harris County jail the day before Valentine’s day last month. A modern, risk-based bail system might also have saved hundreds of the 1,111 people who died in Texas jails between 2005-2015, 90% of whom died as a result of suicide, or mental or physical illnesses. The poorest people who get stuck in jail for lack of bail money tend to be the sickest as well, and they don’t have their medications when they’re booked into jails. The money bail system effectively means a death sentence to these vulnerable people. 

Ending Pretrial Punishment. If your loved one is arrested tomorrow in Texas, he or she will almost certainly be required to pay money to get out of jail. For most people who cannot pay the entire amount of the bail set, the only viable way to get out of jail is by making a non-refundable payment to a bondsman. This amounts to punishment, a fine, without proof of guilt. As someone who has paid bail money to get a cousin out of jail in Houston, I will tell you that it feels very much like pretrial punishment. The same troubled cousin was later arrested in Austin where judges have implemented a risk-based system, and he was released on a PR bond within a few hours. This use of PR bonds, based on a validated risk assessment, is what the bail bill would implement. The vast majority of people arrested are low-level, low-risk people who should be promptly released on PR bonds upon a finding that they are safe to be released. Rather than pay for a bail bond, they can use their money to pay for an attorney so the county doesn’t have to appoint one at taxpayer expense. 

Countering the Misinformation. To the many legislative directors and aides reading this, please talk to your members. The bill does not eliminate the possibility of money bail, but it would reduce its use. There will surely be a misinformation campaign about how the bill is an “unfunded mandate” and creates public safety risks because judges will indiscriminately release dangerous people. Opponents will say that the bail bond business provides a public service for free. None of these things are true. I have nothing against bondsmen; they are simply small business owners. Unfortunately, however, the service this industry provides is inconsistent with sound public policy. Times change. We no longer need or want typewriters in offices or trans fats in our foods either. More effective products displace those that no longer serve us well. 

Meanwhile, back at the ranch . . . Houston officials defend the indefensible. Litigants have challenged the money bail system in Harris County, the state’s largest and deeply intransigent jurisdiction. The trial started today, March 6th. The litigation shake-up, combined with the election of reform-minded officials, has already brought some progress. Remarkably, the District Attorney Kim Ogg, following the lead of the Sheriff Ed Gonzalez, recently filed an amicus brief siding with the plaintiffs who are suing the county’s misdemeanor judges (see attached brief). So far, the county refuses to budge from its stance supporting the use of money bail, even though the system has been shown to be arbitrary, wasteful, cruel, and dangerous. The county’s lawyers went so far as to make the ludicrous statement that some people are in jail because they prefer to be there! 

Holding tight to the Bail Schedule. To deflect the criticisms, Harris County officials have agreed to do everything short of getting rid of the bail schedule. Last month, they touted the implementation of the Arnold Foundation risk assessment instrument, which would be important if the judges were actually planning to make decisions based on risk assessments rather than simply following bail schedules. They have no plans to do away with money bail, and that is why the county has been unable to settle the lawsuit.

Here are other “baby steps” that Harris County has made, while desperately clinging to the money bail system. After years of feet-dragging, county officials have finally agreed to provide people with public defenders at bail hearings as part of a pilot project. (I will never understand why a “pilot project” is necessary. By what measure will they evaluate whether it is a good idea to give people access to a fair defense at bail hearings? Keep in mind that prosecutors have participated at these hearings for many years. That’s right—the county has held one-sided hearings with a prosecutor and magistrate, but no one to speak for the jailed person!)

To its credit, the county has started several programs to reduce the number of people in jail: the District Attorney’s policy to“legalize” of small amounts of pot, a “reintegration court” to get minor offenders out of the jail quickly, and very modest efforts to get the seriously mentally ill out of the jail and into treatment facilities. All of these programs are welcome and long-overdue, but they are not bail reform.

The Whitmire/Murr bill represents true bail reform for Texas and should be strongly supported. Now I am waiting for a hearing to be set!