Abstract 'sweet spot' imagined on bail reform probably doesn't exist

Your correspondent has mostly stayed out of bail debates this year at the Texas Legislature for two simple reasons: 1) There are many opportunities for criminal-justice reform legislation that Grits believes have a real chance to pass, and 2) IMO there don't exist any opportunities for bail reform in the 87th Texas Legislature that reform-minded advocates will find acceptable or which will stand the test of time once federal courts finally address the issue.

There are three centers of gravity in the bail debate: Governor Abbott, whose positions largely reflect those of the bail industry and tuff-on-crime political ideologues like Andy Kahan; the 5th Circuit, which has at least three Texas bail cases bubbling up in its direction which will establish a new constitutional floor for Texas bail policy; and reform advocates who want to end money bail.

There are several dynamics that make a viable legislative outcome impossible in 2021. Advocates and the 5th Circuit cases are largely focused on bail issues surrounding indigent defendants and reflect concerns about excessive detention. By contrast, the bills filed by Sen. Huffman and Rep. Murr, which reflect approaches more in concert with the Governor's priorities, don't necessarily agree with one another but both reflect a desire to expand detention and to eliminate local options to release defendants pretrial. (There are other bail bills that are better, including one from Rep. Ron Reynolds, but they don't have a prayer while Abbott is Governor.)

Meanwhile, advocates themselves aren't all on the same page. Some think risk assessments are racist harbingers of evil; some think they're fine, or at least inevitable and not worth fighting over. Some want to find a sliver of agreement with the bills moving in order to retain a "seat at the table." Others, and Grits is in this camp, think nothing supportable can pass this year and we should wait for the 5th Circuit to lay the groundwork for what's next.

Essentially, there remain people who believe there's a Venn diagram of bail reform out there that looks like this:

Somewhere, theoretically, they imagine there's a policy no one has found yet that hits the sweet spot and if they just stay at the table long enough, maybe they'll discover it. The problem is, that's not the diagram. The IRL version of bail reform probably looks more like this:

The 5th Circuit cases and reformers are largely engaged in the same project: Reducing pretrial detention for defendants who can't afford bail. It's possible, even likely, that federal courts will choose a route to that goal that's less aggressive than abolishing money bail entirely, as most advocates would prefer. But there's more overlap than distance between the court rulings so far and what #cjreform folks would like to see happen. Certainly the courts are pushing local actors toward bail reform more aggressively than had ever been possible through the political process.

By contrast, Abbott and his legislative enablers are mainly concerned with expanding pretrial detention. Some of their proposals are so radical they'd require amending the Texas Constitution to accomplish. The tiny shreds of overlap between Abbott and the conservative wing of a bipartisan reform movement don't coincide at all with the project the federal courts have undertaken. There was a time several years ago when legislators could have headed off federal litigation by passing bail reform. But they failed to act so the federal judges moved forward and did their jobs. Now that ship has sailed. If the Texas Legislature passes a bill at this point, it will either address issues tangential to the federal litigation or likely be overturned by it in the near future. 

In that light, I don't see a sweet spot on bail reform in 2021 that's a) legislatively viable and b) conforms with what are likely to be new federal court mandates arriving in the next 2-3 years. At this point, bail-reform supporters in Texas should just oppose these bills en toto. For the moment, it's a can't-get-there-from-here situation.

Harris County DA: Judges cannot consider health issues as part of pretrial release decisions.

We're still waiting for the Supreme Court of Texas to rule whether Governor Greg Abbott's executive order on COVID-related jail releases is valid (see Grits' writeup here).

In the meantime, though, Harris County District Attorney Kim Ogg has filed an "emergency motion" with the Texas Court of Criminal Appeals arguing that judges do not have authority under the Code of Criminal Procedure to consider "public health matters," including the risks associated with people catching the coronavirus in jail, when they make bail determinations. Her motion opined that:

A concern over COVID-19, and an extra-judicial desire to not “fill the jail up”, entered into Singleton’s bail determination. This was improper.  

Article 17.15 lacks a “catch-all” to permit consideration of public health matters, nor does any existing case law. In addition, nothing in this Court’s First Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-007, permits a court to circumvent art. 17.15. 

The case involves a 31-year old black man named Timothy Singleton who allegedly pointed a gun at someone who allegedly owed him money and threatened to kill him if the man didn't pay. According to the DA's court filing, "Singleton has prior felony convictions for Assault—Family Member, Retaliation, Robbery, Credit Card Abuse, and Delivery of a Controlled Substance." The DA's office wanted a $50,000 bond set, which would mean he'd need to come up with $5,000 for a bail bondsman to be released pretrial.

Singleton's case has been touted widely in the local media and clearly the DA's office hopes to use it to set a precedent stopping judges from considering coronavirus-related issues altogether.

It's worth mentioning that bail is intended only to ensure the defendant shows up in court, it is not supposed to be a punishment. To that end, it's notable that, in fact, Mr. Singleton DID show back up to court so the DA could argue to raise his bail, making it a somewhat dubious claim that the bail amount was too low to get him to come back. (See the second update below)

Regardless of the merits of bail arguments in this particular case, Ogg's is a more regressive stance, even, than the governor's executive order, which did in fact include a catch-all for "health or medical" issues.

By filing this motion, the DA's office is seeking an arrest warrant for the bailed defendant. She quoted this passage from the CCP on that score:

Where it is made to appear by affidavit to a judge of the Court of Criminal Appeals, a justice of a court of appeals, or to a judge of the district or county court, that the bail taken in any case is insufficient in amount, or that the sureties are not good for the amount, or that the bond is for any reason defective or insufficient, such judge shall issue a warrant of arrest, and require of the defendant sufficient bond and security, according to the nature of the case.

I understand the DA's Office is used to getting its way on these matters, but the Code of Criminal Procedure gives judges the authority to call these shots, not her. The Court of Criminal Appeals, however, can overrule local magistrates (if Ogg's reading of the statute is correct - I am not an attorney). And considering the Government-Always-Wins faction of the court currently holds a solid five-member majority on that body, your correspondent fears they may use this opportunity to enact a sweeping precedent.

Attorney Emily Gerrick from the Texas Fair Defense Project pointed out via text that "it's so exceedingly clear that they are not at all worried about wealthy people who might be violent." That's exactly right. Kim Ogg obviously isn't worried about Singleton getting out if he has $5K to pay a bail bondsman. Only poor people should stay locked up pretrial, according to her logic (which incidentally, is similar to, if more regressive than, the governor's logic in his executive order).

This petition comes on the heels of the Texas Department of Criminal Justice announcing it will no longer accept new prison inmates from county jails. So if Ogg prevails and judges cannot consider health issues when determining pretrial release, Texas county jails may quickly find themselves in a full-blown crisis, unable to limit new incarceration due to the coronavirus on the front end and unable to ship people to prison once their cases have been adjudicated.

UPDATE: The Court of Criminal Appeals denied Ogg's motion, declaring she must first pursue it through the Court of Appeals before they would hear it. Thanks to Keri Blakinger for the heads up.

NUTHER UPDATE (4/16): I have been informed today that Mr. Singleton has allegedly engaged in an act of domestic violence (4/17: here's news coverage) while out on bail and is now on the lam. To be clear, I wasn't arguing whether this particular person should or shouldn't have been released. (I know nothing of the case beyond Kim Ogg's motion.) My main concern is what I consider an irresponsible argument from the DA that judges cannot consider health issues when assigning bail.

Litigation challenges Abbott's executive order on COVID-19 jail releases

The Texas Fair Defense Project, ACLU of Texas, and the Lawyers Committee for Civil Rights Under Law sued Governor Greg Abbott over his executive order (GA-13) related to pretrial jail releases in response  to the coronavirus, as well as Attorney General Ken Paxton, who has vowed to aggressively enforce it. The Harris County Attorney's office has also signed onto the litigation, and 16 Harris County Criminal Court at Law judges number among the plaintiffs. It was filed in a Travis County district court.

In an email announcing the lawsuit, TFDP's Amanda Woog wrote that:

Public health experts have been warning for weeks of the dangers of COVID-19 in jails: tight quarters, a particularly vulnerable population, and a revolving door of staff and detained people, make a jail a "hotspot" for a COVID-19 outbreak which would devastate the people within and outside the jail walls. The order sought to disrupt the incredible movement we've been seeing across Texas of local stakeholders working together to reduce their jail populations. 

The executive order threatens public and community health, undermining efforts to reduce jail populations and avoid outbreak in jails and surrounding communities. Further, under the order, only the poor would stay in jail; people who can afford to pay cash bail are released, to the privilege of social distancing and other precautions we on the outside can take to avoid infection. 

It disrupts the work of local communities in determining how to respond to this unprecedented crisis, and unconstitutionally usurps the authority of the legislature and the judiciary.

The petition filed this morning can be found here, and the ACLU-TX press release here.

The lawsuit alleges Gov. Abbott's order spawned "turmoil and confusion in the courts by purporting to strip judges and magistrates of their authority to decide individual cases." As a result, "The judges are now caught between fulfilling their obligations to decide bail in individual cases as prescribed by the Constitution and Legislature, or obeying an Executive Order."

The petition argues that "The Disaster Act does not empower the Governor to modify or suspend the targeted sections of the Code of Criminal Procedure. This renders GA-13 unlawful in its entirety, and the Court should invalidate its provisions as ultra vires [ed. note: acting beyond one's legal authority] on this basis alone.

Also, "GA-13 violates Article I, Section 28 of the state Constitution, which prohibits non-legislative suspension of the laws of the State, and Article II, Section 1, which mandates separation of powers between co-equal branches of government. GA-13 is therefore unconstitutional on its face."

Both stances to me appear inarguable. The governor has the power to suspend administrative regulations, but not the friggin' Code of Criminal Procedure! Grits wrote the other day that Abbott had exceeded his authority, and this is precisely why.

Conservatives should be just as unhappy at this attempted gubernatorial coup vs. local judicial power as are the judges, criminal defense lawyers and civil-rights groups who are plaintiffs in the suit. After all, if in a few years Democrats find themselves in control of statewide offices, will conservatives really want some liberal governor to have the authority to suspend criminal-law statutes and override local judges every time a disaster is declared?

Observed the plaintiffs, "The Disaster Act has never been interpreted to empower the Governor to interfere with the power of the Judiciary. Until now, no Texas Governor has invoked the Disaster Act to purport to suspend provisions of the Code of Criminal Procedure and effect sweeping changes to criminal law." Indeed, "The Texas Constitution provides that 'No power of suspending the laws of this state shall be exercised, except by the Legislature.' Tex. Const. Art. I, § 28."

Grits is very glad to see this and hopes the courts act quickly to thwart the governor's attempted power grab. I don't think he and Paxton have a leg to stand on.

See initial coverage of the lawsuit from the Austin Statesman and the Texas Tribune.

UPDATE (4/10): Just before a hearing began on Friday considering the request for a temporary restraining order, attorneys for the Governor and Attorney General filed their response brief. For those interested, here's a copy. Here's the first media coverage on the topic from the Fort Worth Star-Telegram, and another article from the Austin Statesman. I'm listening to an audio file of the hearing now. Judge Lora Livingston sounds unconvinced by the Governor's lawyers' arguments.

'The Peter Parker Problem': With great (judicial) power comes great responsibility

What does that Spiderman story have to do with judges setting bail? From a psychological perspective, as it turns out, everything!

Since everyone is looking for diversions while American society shuts down over the coronavirus, here's an interesting article I read recently that merits Grits readers' attention. Check out "The Peter Parker Problem." The premise: After Peter failed to help police apprehend a criminal who ran right past him and later killed his uncle,

Peter is sure he caused his uncle’s death. Even though this seems natural, stop to consider whether it is. First, Peter emphasizes his agency in not stopping the thief. But what about the agency of the thief? The thief decided to rob Uncle Ben, the thief decided to kill Ben when the robbery went wrong, and the theif planned to make his money through theft. Second, Peter overweights the likelihood of the thief killing his uncle because it happened. But how was Peter to know, as the thief was running down the hall, that the thief would kill anyone, much less his uncle? There was no particular evidence of violence at the time, and thieves as a class are not automatically violent. Third, Peter’s sense of responsibility is amplified by proximity (“I was so close”)—he would feel differently if he had been far away in place and time (seeing the thief run away from a distance, for example, even if he could have caught the thief if he sprinted). Peter thinks about the tragedy in terms of simple, one-to-one causes (“If only I had stopped him”) rather than many-to-many or other problems (e.g., “If only we had better gun control”). He thinks about the cause in terms of choices (dispositionism—e.g., “If I only I had done something”) rather than situational factors that would be equally effective (“If only the elevator had been out of order, or if only Uncle Ben had gotten food poisoning last night and not gone out of the house today, or if only he had left five minutes later or five minutes earlier, or if only the thief had killed someone else or Uncle Ben had been killed by a different perp.”).

Santa Clara University law professor David Ball argues (citations omitted) that

Criminal law is rife with examples of this kind of “just in case” thinking. California prison officials denied medical parole to a quadriplegic man on the grounds that he posed a threat to public safety, just in case he were to “possibly use his vocal cords, which are not paralyzed, to order crimes, maybe attacks on state employees.” Police officers stopped and frisked hundreds of thousands of mostly black and brown people in New York just in case some of them had weapons, even though the overwhelming majority didn’t. The United States Supreme Court held that it was reasonable to strip search someone wrongly arrested on a bench warrant because he could have been smuggling drugs—just in case, that is, he anticipated both the clerical error and the timing of the enforcement of the bench warrant and secreted drugs in his rectum. A well-known law professor argued that we should allow torture just in case we come across a situation where we know that there is a bomb, we know that it is going to go off soon, we know that the person we’ve detained knows all about it and won’t tell us unless we torture him—but, despite knowing almost everything about the scheme, we just don’t know where the bomb is. (Sometimes the claims of safety risks, particularly in a carceral context, are even less developed.) And if these harms never arrive? We got lucky—this time.

This article confronts a question which has thwarted many a reformer, particularly related to pretrial detention and parole decisions: what if risk assessments by actors in the justice system are really "psychological, not actuarial? What if different decisions about these populations (and the differences in how we view them) are not based in different assessments of risk, but about the psychological heuristics we use to analyze them?"

The current system, argues Ball, doesn't so much assess risk as "invoke" it as an excuse to ignore other risks. For example, the risk that "Detainees get longer sentences, they plead guilty more often, they are at risk for violence in jails if they suffer from mental illnesses and, even if the case is dismissed, they suffer economic losses from foregone work during detention. Though these losses are substantial, they are less salient. It is harder to keep them front of mind."

The article explores experimental research by behavioral psychologists on regret and counterfactuals to provide a compelling case for what's really driving high rates of pretrial detention.

Good stuff. Give it a read.

Conflating federal/state systems to demagogue vs. bail reform

The Dallas Morning News editorial board issued one of the most ignorant, counter-productive commentaries on bail reform I've seen in a while. They announce that:

there is another type of bail “reform” that is growing into a national movement championed by some district attorneys. This type of bail reform drives toward the uncritical release, on outrageously low bonds, of people accused of violent crimes who have a history of violent behavior.

This, of course, is a bald-faced lie. They quote no district attorneys suggesting this because none of them ever have. But that doesn't stop them from pretending that Dallas DA John Creuzot somehow merits criticism on this vector:

Dallas District Attorney John Creuzot has been a leading voice for bail reform, just as he has led Dallas in the embrace of refusing to prosecute low-level crimes. We don’t believe his approach is the most effective to keep Dallas secure, especially in its most vulnerable communities.

The editorial board would like to pretend they support bail reform, just not John Creuzot's brand. What bail reform do they support? None, really. They're engaging in misdirection, attempting to blame bail reform for the failings of the status quo. 

They were reacting to a column by the US Attorney for Texas' Northern District whose headline posed the demagogic question, "Why are many violent criminals back on the streets shortly after being arrested?" Given that crime rates remain at 40-50 year lows, that's awfully phony framing. Despite an uptick this year, on the whole, Dallas residents remain less likely to be victimized by violent crime than at any time in decades. Yes, in a city with so many people, one can always identify scary anecdotes. But overall, crime rates are way down.

The USA's commentary and the Dallas News' editorial board's less nuanced, more ham-handed, and fundamentally stupider assessment both hinge on a misunderstanding of the differences between federal and state law on bail. IMO, the USA intentionally elided these differences. The Morning News' editorial board appeared simply ignorant.

Here's the deal. The federal system doesn't use money bail at all. Instead, there exists a concept called "preventive detention," so most people are simply let go pending trial. OTOH, if they're deemed an imminent danger to the public, defendants may be detained without bail. That's not how it works under the Texas Constitution, Sec. 11a, which in fact forbids preventive detention in all but a handful of circumstances. Everyone else is entitled to money bail, and if they can afford to pay, they are released.

The case of David Cadena, which the Morning News portrayed as the poster child for their stance, offers a case in point. He didn't meet criteria for preventive detention and so he was granted bail for his alleged violent offenses, posting $20K and $25K in two separate incidents.

This is how the system has worked forever: If you have money, you get out of jail; if you don't, you stay in. That's not the fault of bail reform, that's the old-fashioned money-bond system at work. Certainly it's not a function of anything John Creuzot did!

The USA and the Dallas Morning News both pretend that judges had the option of detaining Cadena indefinitely when, in reality, setting bail was required. 

Meanwhile, neither the USA nor the editorial board deny there's a big problem with low-level offenders languishing in jail  because they can't make bond. But they blow past the issue to speciously blame bail reform (which hasn't happened in Dallas) for violent crimes happening under the legacy system. That's disingenuous.

Grits is unsure why a federal prosecutor would stick their nose into these local issues except perhaps for a Trump appointee wanting to score political points against urban Democrats. But the Dallas News routinely offers the worst coverage in the state on all criminal-justice topics, harking back to '90s-era demagoguery in both news and opinion pieces far more frequently than other Texas MSM outlets. This was par for the course for them.

Podcast: Texas bail reform litigation, demagoguery on crime in Houston, and Grits' contribution to new TDCJ Hep C litigation

Here's the September 2019 episode of Just Liberty's Reasonably Suspicious podcast, co-hosted by Scott Henson and Amanda Marzullo. Special thanks to Scott Medlock, who's suing TDCJ over failure to adequately treat Hepatitis C. I didn't realize until he told me the idea from the suit originated from a Grits for Breakfast blog post several years ago! That's exciting. Here's this month's episode:


In this episode:

Top Stories

• Harris and Galveston County bail litigation - 1:40
• HPD Chief Art Acevedo demagogues on bail reform - 10:30
• Interview: Attorney Scott Medlock on TDCJ Hep C lawsuit - 14:45

Fill in the Blank

• TPPF on police union politics - 27:45
• Crime debates in Houston mayor's race - 32:45

The Last Hurrah (37:25)

• DPS stops patrols in Dallas
• Do Dallas police murder indictments signal changing attitudes?
• Oklahoma parole changes a model for Texas?

Find a transcript of this episode below the jump.

A first-cut reaction to Harris-County DA Kim Ogg's reasons for opposing bail reform

Why does Harris County DA Kim Ogg oppose the proposed bail-reform settlement in Houston? Let's dig into this bit by bit, starting with the four, bullet-pointed reasons stated in her amicus brief filed today. The bulleted items are her language, then my comments follow each of them:

• Accords unfettered and unreviewable discretion to misdemeanor judges and magistrates to delay (or outright excuse) misdemeanor defendants from appearing in court, contrary to Texas law.

Ogg's claim that the settlement is "contrary to Texas law" is overstated. The case law she quotes to support the argument says judges can waive appearances for "good cause" and leaves that undefined. You could drive a settlement-sized truck through that loophole. Throughout the brief, Ogg expresses the view that judges will use their discretion unreasonably. Where does this distrust of the judiciary come from? Judges have always had extraordinary authority, and historically used it to disproportionately favor outcomes presented to them by prosecutors. She never complained then!

• Increases institutional dysfunction in the criminal justice system by disproportionately favoring convenience to misdemeanor defendants without regard to the impact on victims, witnesses, and the other stakeholders and the State’s efforts to produce them for hearings and trials.

"Convenience" dramatically understates people's liberty interests and the harms associated with locking them up in cages pretrial. A common theme throughout this brief is her failing to consider the violation of defendants' liberty interests as anything beyond a minor inconvenience, as opposed to the seismic, life-altering disruption it can be IRL.

• Increases the capability of the defendant to challenge and defeat motions by the State of Texas by and through the District Attorney to set bail at any amount, increase the amount of bail recommended, or impose conditions of bail through exclusion of any mention or committed support for the District Attorney in the Proposed Settlement, while guaranteeing such support for the defendant, Public Defender and all support services in Section VII.

Essentially, this is a request for unfettered power. Her complaint is that a defendant who is not in jail pretrial might be better positioned to successfully mount a defense. The only practical limits on a DA's power are imposed by courts in response to defense motions, and Ogg wants to make sure defendants don't have the "capability"  to "challenge and defeat" her office in contested proceedings. But shouldn't her office lose if a judge decides she's wrong? The criminal-justice system supposedly is adversarial and defendants get to file motions, too.

• Imposes post-release policies through federal court settlement instead of through democratic processes, essentially foreclosing state and local government from developing constitutionally sound new policies as circumstances change and limited county resources dictate.

This may be the weirdest one: The county commissioners, judges, etc., who were involved in approving the bail settlement were all local elected officials. The only officials not involved in this settlement are legislators. Is Kim Ogg really proposing - after bail reform crashed and burned in Austin this spring - that we put all this on hold and hope that the Texas Legislature can do better in 2021?

Grits may yet go through some or all of the rest of the brief in additional posts; it's really quite a document! When I heard Ogg had filed this, my first reaction was "Why?" And since she answered that question in convenient bullet-point format, I thought this was a good place to start dissecting the topic.

H/T: The Appeal. MORE: See Houston Chronicle coverage.

AND MORE: Defendants filed a brief in response to Ogg's. Here it is.

Harris County probation department making big improvements, but it's still probation

As part of reforms implemented with its MacArthur grant, Harris County consolidated all of its state jail cases into one district-court docket called the "Responsive Intervention for Change (RIC) Docket." According to the Texas Comptroller:

Before the reforms, a disproportionate share of Texas' state jail felons (SJFs) were from Harris County — 26 percent in 2014, well in excess of the county's 16 percent share of the state's population. Five years later, its share of the total had declined by 90 percent, from 5,817 to 611. Harris County still sends more felons to state jail than any other county, but its overall share of the SJF population has fallen to 10 percent

The difference, May explains, is that the county has increased the number of defendants willing to accept probation through its RIC Docket, specialized caseloads (e.g., for substance abusers) and pre-trial diversion (PTD) programs offering mental healthcare, drug rehabilitation and work-release programs rather than prosecution. The county also significantly reduced the time defendants spend in jail awaiting trial, which greatly curtailed “good time” credit, removing the incentive to just sit idle or plead out to state jail, thereby reducing incarceration costs. 

"When defendants are not racking up a substantial amount of back time in jail awaiting disposition," May says, "they are more open to diversion or community supervision." 

Before their cases are decided, defendants' risk levels are assessed and their needs identified to target what's causing their criminal behaviors. The most common contributing factors, according to the CSCD, are attitude, peers, personality, family, education/employment, activities and substance abuse. 

On the back end, greater community supervision has helped to halve the re-arrest rate of the county's released SJFs, from more than 60 percent to less than 30 percent.

These are excellent outcomes and a great improvement over past practices. Grits finds particularly interesting the correlation between reduced pretrial detention and people's willingness to accept probation in a plea bargain. Reducing inefficiencies in one part of the system generated ancillary benefits in another.

Even so, there are moments when Harris County reminds us even the best probation departments are still doling out harm. This week, they tweeted out a success story of a woman named Sarah who completed probation and was released five-months early. HCCSCD praised her for having paid money to complete an "Effective Decision Making" class, then patted themselves on the back that, now that she has no fees, she can afford a new child's seat for her infant!

"How many people still paying fees are making similar tradeoffs to complete probation requirements?" Grits wondered aloud on Twitter. Certainly, more than a few.

The department's use of early release for successful probationers is commendable and deserving of praise, as is the new state-jail docket. But the perverse choices forced on this successful probationer - whether to pay for an "Effective Decision Making" class or a car seat for her infant daughter - are commonplace throughout the system. At this point, they're more a feature than a bug.

RELATED: From the state comptroller, "Texas state jails: Time for a reboot?"

Harris County bail-reform settlement a landmark defeat of Texas bail-industry lobby

There once was a county named Harris 

Whose bail system left them embarrassed

Then judges were sued

And elections did lose

So now lo and behold they can settle this!

The bail settlement in Harris County may not be as important, when viewed through an historical lens, as Brown vs. Board of Education, despite Harris County Commissioner Rodney Ellis' grandiose declaration to that effect. But it's still a Very Big Deal, and the first domino to fall in what will ultimately conclude with a 5th Circuit (or US Supreme Court) decision governing pretrial release of criminal defendants in Texas.

Harris County judges have enacted a "new policy of automatic, no-cash pretrial release for about 85% of low-level defendants," reported the Texas Tribune. 

Art by Grits. Click to enlarge.

The settlement news warms the heart of this aging polemicist. Excessive pretrial detention in Houston was one of this blog's earliest hobby horses, presaging many of the debates which ended up resolved through federal litigation nearly a decade-and-a-half later. For example, check out a series of Grits posts on the topic rounded up in 2005 after the Harris Co. probation department began using them as training materials. Most of those critiques would remain salient until well after the just-settled litigation got serious, at which point the county began to implement more significant changes. At the time, though, there were 1,900 people sleeping on the jail floor due to overcrowding, so in a way, the issue was even more pressing back then.

Which is why it's worth recognizing that it took the federal courts to accomplish these changes that every expert who ever looked at Harris County's system had been advising for more than a decade. For whatever reason, whoever won elections, red or blue, there was never any appetite for serious bail reform through the political process. Someone had to sue, and win, to get judges to stop ordering bail for most misdemeanor defendants. (Many of the reasons for that are specific to Houston; your mileage may vary in other jurisdictions.)

Another notable point: At the commissioners court, as at the Texas Legislature, bail bondsmen found champions but could not sustain a majority after an informed debate. That's my big takeaway from those two, recent bail fights, one where reformers lost and one where they prevailed: At both the state and local level, bail bondsmen have shown they can be beaten. They had an impressive track record before this year, and the first half of 2019 may have finally demonstrated some chinks in their armor.

Here's why I disagree with Rodney Ellis that this litigation settlement is as important as Brown vs. Board of Education: While it resolves the underlying issues, it also robbed the 5th Circuit (and/or SCOTUS) of the opportunity to set a baseline that applied to all Texas, Louisiana, and Mississippi jurisdictions. Instead, the settlement terms only apply to Harris County and at most are advisory recommendations everywhere else.

So it will be some other county currently being sued - probably Dallas, I'm told by attorneys involved in the litigation - which ends up setting binding precedent for Texas courts, particularly with regard to setting bail in felony cases.

Once that happens, the Texas Legislature will be in a much better position to know what bail-reform legislation should look like when they come back in 2021.

Bail-bondsmen amendments made 'reform' bill actively harmful

Texas' bail-reform legislation remains a mess and Grits has said for weeks the bills not ready for prime time during the 86th Texas Legislature. But after an amendment from the bail-bond industry was tacked on to HB 2020 (Kacal) yesterday in the Texas House by Democrat Oscar Longoria, "bail reform" has gone from a premature, ineffectual and pointless bill to an actively harmful one. (See the Texas Tribune for a quote-both-sides version of the story.)

According to our friends at the Texas Fair Defense Project:

The amendment would: 

REQUIRE money bond and disallow non-monetary bond, aka personal bond, for a huge number of people, including:

• People who are charged with possessing just four grams of any controlled substance;

• People who have a history of failure to appear after being released on personal bond within the last two years. Failure to appear is not defined and could include non-intentional failure to appear. Failure to appear rates are also closely tied with socio-economic status.

• People who are charged with any level of crime that has a victim, including any level of assault. This means that a high school kid who gets in trouble for pushing a classmate would not be able to get out of jail unless he or she had money.

Codify bail schedules, which have resulted in litigation across the state. Bail schedules mean that anybody with money can get out of jail. This is particularly bad for a bill titled the "Damon Allen Act," since the man who killed Damon Allen was released because he had the money for bail, and so could have gotten out under this bill automatically (as could anybody with money). 

HB 2020 also now has an amendment that would put a bail bondsman on the new Bail Advisory Commission that will be making recommendations for pretrial detention practices, which will ensure that there will always be people with power on the commission who want to increase reliance on money bond. This would mean that wealthy people can get out of jail while poor people have to sit in jail until they take a plea bargain (even if they're innocent). 

HB 2020 is now the complete antithesis of bail reform. It will drive up pretrial detention rates, drastically increase jail costs for counties, and force judges to rely on monetary bond over any other alternatives. 

Yesterday's bill passed on a voice vote, but third reading votes are all on the record. I suppose there's some small hope that House members will vote against the bill or peel off the amendment, and they should. But if not, here's hoping Senate Criminal Justice Chairman John Whitmire will (please!) kill the bill in the senate.

The legislation cannot be "fixed" because the federal 5th Circuit Court of Appeals has yet to define the questions the Lege must answer. In two years, the 5th Circuit will have ruled in either the Dallas or Galveston litigation and we'll know what constitutional baseline the Lege must meet. Until then, this entire endeavor is premature, and now potentially harmful.

UPDATE: The House removed the Longoria amendment on third reading.

NUTHER UPDATE: This bill is dead.

Texas bail-reform legislation not ready for prime time

Competing bail-reform bills are up in the Texas House Criminal Jurisprudence Committee today, but in this writer's view, none of them is ready for prime time.

For reasons articulated before, the Texas Judicial Council bill carried by Murr/Whitmire (HB 1323) fails to address the main constitutional flaws identified in Texas' system by federal litigation.

The Governor's bill, carried by Rep. Kyle Kacal and backed by the bail-bond industry (HB 2020), is even worse. It creates a new layer of government - the Bail Advisory Program - and the committee substitute stocks it with politicians instead of issue-area experts. The program's mandate? To reinvent the wheel, creating a new validated-risk-assessment tool, even though the Office of Court Administration already has one that's available free for counties to use.

Neither bill addresses the failure of counties to provide defendants counsel when magistrates set bail, which is the principle issue at stake in all three federal litigation sites. And neither addresses the fundamental constitutional question of incarcerating people because they can't afford to pay money bail. So the matter won't be resolved no matter which bill passes.

In that light, Grits has come to believe legislating this topic is premature. In two years, once the 5th Circuit has clarified the constitutional baseline, it will be possible to create legislative rules that implement it. But if legislators aren't going to address the core subjects at issue in the federal litigation, Grits fails to see the point of passing anything now.

Bail-reform blues: Can't please all parties when reforming pretrial-detention process

Governor Greg Abbott's endorsement of bail reform last year appeared to give the issue fresh life. But Abbott has now backed a bail-reform bill that eschews best practices and instead puts his office at the center of future decisions about pretrial reform.

The Houston Chronicle editorial board rightly opined that the move puts legislative reform efforts at extreme risk, but it's hardly just the governor. There's a swirl of backroom drama surrounding this topic with an array of competing interests and agendas, and no obvious way to navigate the morass. Here's an overview of interests framing the topic:

• Federal court injunctions have mainly focused on representation of indigent defendants at bail hearings and eliminating discrimination based on ability to pay.
• Counties oppose requiring appointment of counsel for indigent defendants earlier in the process, considering this an "unfunded mandate."
• The Texas Judicial Council proposed using risk assessments to reduce incarceration of low-risk offenders (the Office of Court Administration developed an instrument based on work by the Laura and John Arnold Foundation to create a version counties could use for free).
• The bail industry opposes use of risk assessments with the heat of a thousand suns and is investing big money in lobbying and communications strategies to undermine bail reform efforts.
• After the death of a state trooper named Damon Allen, Governor Abbott weighed in to say his biggest priority was expanding the scope of preventive detention.
• The criminal defense bar adamantly opposes granting any additional preventive detention powers to the government.
• Criminal-justice reformers are split. In theory, all support reduced pretrial incarceration in county jails, but some oppose the use of risk-assessment algorithms which are viewed as racially biased.

The Governor's proposal criticized by the Chronicle focuses primarily on preventive detention and expanding the power of his office over local court processes. The federal litigation driving the issue is more focused on access to counsel at bail hearings and reducing unjustified pretrial detention. Meanwhile, the Whitmire/Murr legislation ignores the access to counsel issue and promotes risk assessments and preventive detention, trying to merge the Governor's priorities with the judiciary's.

Never say never, but it's hard to see the path toward threading that needle. And if it were to occur, the resulting bill likely wouldn't resolve the issues at stake in the federal litigation, and we'd be back doing this again in 2021. After the federal litigation has finished, it will be much more clear what needs to be in the bill to ensure counties meet baseline constitutional standards, since they will have been outlined by the 5th Circuit.

In the end, the will may not yet exist to solve the problem through the political process. Certainly there is no consensus regarding what reform should look like and who should control it.

But much could change between now and 2021. If the Lege fails to act this year, odds are federal litigation presently pending in the 5th Circuit will reach its denouement between now and the next time they meet. That will create a new baseline for pretrial-detention rules and give the Legislature much more guidance, and possibly different priorities.

So look for the Texas Lege to revisit bail reform in 2021, whether or not a bill passes this time.

TX bail-reform momentum growing amidst supportive press

Source: SA Express-News

In San Antonio, bail companies openly advertise to defendants that they should reject "personal bonds" and use bail bondsmen instead to avoid court fees, in-person check ins, and drug testing. That's pretty brash, for a group trying to convince the Texas Legislature that they're in the business of protecting public safety!

Here are several items anyone tracking the Texas bail debate will want to have read:

• SA Express-News: Bexar's stunning embrace of cash bail
• Austin Statesman: Texas' bail bond system is broken. This bill can help fix it
• Beaumont Enterprise: State should reform cash bail system
• Filter: New evidence backs calls to end cash bail

The Express News story mentioned a tidbit I hadn't heard. The appointed attorney for Janice Dotson-Stephens - the schizophrenic grandmother who died in the Bexar County jail over the holidays - never once visited her in the five months she sat in jail on a $300 misdemeanor bond. Asked if the attorney, Jerry Valdez, faced any sanction for this failure, County Court at Law Judge John Longoria, who is leading the charge to oppose bail reform, told the paper, "I am a little embarrassed that we haven’t looked into it for more detail.” As in Travis County where judges are opposing new state funding for indigent defense because they prefer not to have a public defender, apparently Bexar County judges cannot be embarrassed into reform.

The Filter story describes Philadelphia DA Larry Krasner's bail reform efforts. Here is the list of offenses for which his office no longer requests cash bail:

RELATED: On the January episode of our Reasonably Suspicious podcast, my co-host Mandy Marzullo and I discussed the various federal bail-reform lawsuits around the state. It's the top story, starting at the 1:58 mark.

Guerra-Thompson: Harris County bail compromise still discriminates against poor people

Sandra Guerra Thompson, Director of the Criminal Justice Institute at the University of Houston Law School, is unimpressed with the proposed bail settlement in Harris County, saying it continues to discriminate against the poor. Grits received this email from her this morning and am reprinting it with her permission:

I’ve spent much less time on the bail issue of late, but I have made some inquiries recently about the new Harris County policies.  Much to my chagrin, the county has tweaked the system to avoid constitutional issues, but in other respects the system still stinks.   Here’s my take: 

Under the old system, money bonds were set across the board almost immediately after people were arrested. Those with the money would bond out. The poorest of the poor would be stuck in jail.  These were the people who would be assessed using a risk assessment instrument and go before the magistrate without counsel where the magistrates would almost always completely ignore the recommendations of pretrial services (based on the risk-assessment instrument). 

You know well the problems with the use of money bonds that are imposed without a risk assessment.  Best practices call for universal risk assessment, and, obviously, decisions should be based (at least in part) on these assessments. 

Under the “new and improved” bail policy, money bonds are still set across the board, so the bail bond industry still thrives as usual. The difference is that now the poorest of the poor who are charged with misdemeanors (with a few exceptions for crimes of violence) will fall into a “presumptive personal bond” category. This means they are no longer assessed for risk by pretrial services, and the magistrate will simply release them on personal bonds. 

The result is this:  fewer people than ever are being assessed for risks. Plus, the unfairness persists. People with money are still released much sooner because they have money, usually within 12 hours. And, the poorest will be out within about 48. And why should people with access to money have to pay hundreds of dollars in bondsmen fees when those who don’t come up with the money (under the same bond schedule) will be released on personal bonds? It makes no sense other than to perpetuate the same money bond schedule while appeasing the federal judge.’ 

There is some good news. At the last County Commissioner’s meeting, they voted to bring in some experts, probably from the Pretrial Justice Institute, to assess their system and give advice for improvement. But for now, I remain disappointed.

Bail litigation updates across Texas, and other stories

A bit of personal news: After Just Liberty's Executive Director, Shakira Pumphrey, left to join the new Texas House Speaker's staff to work on criminal-justice policy, your correspondent was elevated to her old post on an interim basis. Many thanks to Shakira for all her hard work for Just Liberty over the last two years, and good luck at the new gig! Meanwhile, as Grits struggles to fulfill his new admin duties, here are a few odds and ends that merit readers' attention.

New Harris judges propose bail-reform framework
Just-elected judges in Harris County proposed a new bail framework that will become the basis for a settlement offer in the county's ongoing bail litigation. Reported the Houston Chronicle:

Under the new administrative rule, 85 percent of people arrested on misdemeanors automatically qualify for release on no-cash bonds, according to the county’s pretrial services division. People arrested for bond violations, repeat drunken driving and family violence are the only exceptions. These defendants must appear before a magistrate or judge within 48 hours, at which time they may also qualify for personal recognizance bonds.

DA may be liable in Galveston bail litigation
Federal bail litigation in Galveston survived a motion for summary judgement and may now go forward, a District Judge George Hanks, Jr. ruled this week. Hanks said defendants must be provided counsel at their bail hearing, a provision which tracks rulings in Houston and Dallas. (Most Texas counties do not provide attorneys at the bail-hearing stage, so this litigation result could be replicated nearly everywhere in the state.) Interestingly, Hanks also found that Galveston District Attorney Jack Roady, "who controls the county's bail schedule, was liable for his role in perpetuating a wealth-based detention system. Magistrate Edison had ruled that magistrate judges 'always strictly adhere' to the bail amounts recommended by Roady."

Chaos surrounds Dallas County bail-reform proposal
Despite having months to put together a proposal, in federal court this week, Dallas County officials appeared confused and unprepared, reported the Dallas Morning News. County officials wanted to put lawyers from the Public Defender Office at bail hearings, but judges appoint attorneys and some have told the county, "We're not going to participate," the paper reported. That's foolish. Providing defendants counsel at bail hearings is the one, crystal clear requirement that we can already tell will apply to all Texas counties based on bail litigation thus far (including the 5th Circuit's reaction to the Harris Co. bail suit). The Legislature should simply require it in a statute, or else federal courts will require it one county/lawsuit at a time. MORE.

Tea-leaf reading on execution-stay vote
The Court of Criminal Appeals stayed an execution in a case involving bite-mark evidence and Texas evolving, SCOTUS-dictated developmental-disability standard in death cases. On Twitter, your correspondent engaged in some tea-leaf reading over the vote count. I'm worried the Government Always Wins faction may have gained a new member. In other, related, news, I already miss Judge Elsa Alcala's voice on the court.

'Dead Suspect Loophole' in Public Information Act decried
In Austin, several recent cases have brought to light what local media are calling the "Dead Suspect Loophole" in the Texas Public Information Act. The Legislature changed the law in 1997 to say only information about cases that result in a conviction must be made public, and when a suspect dies (say, because they're shot by a cop or die mysteriously in jail), they're never prosecuted. The problems with the law-enforcement exception to Texas Public Information Act go much deeper than that, and the Legislature should address them, but I'm glad this aspect is being highlighted. That said, the loophole is discretionary. Local officials don't have to use it. This is a transparency issue that should be re-raised when the various pols' primaries roll around.

Which crappy, failing bureaucracy should run the Harris County Jail?
Sen. John Whitmire suggested the state should take over the Harris County Jail after its fifth suicide in two years. If the Texas Department of Criminal Justice did a better job, Grits might agree. Suicide attempts at TDCJ are quite high. Weird that the Governor wants the state to take over Houston ISD, now Whitmire wants the state to take over the jail ... there's a theme being developed around the capitol that local officials' autonomy in Harris County should be restricted. The recent blue-wave election there could exacerbate that dynamic in the still-red-as-roses Texas Lege.

Convict leasing history, victims unearthed
The Houston Chronicle has been providing good coverage of the discovery of dozens of black prisoners bodies buried in unmarked graves near Sugar Land. They were inmates leased to the Imperial Sugar Company, for which the town is named. For more on Imperial Sugar and the convict leasing system, check out Texas Tough by Robert Perkinson.

Rangers pulled off LaSalle Corrections investigations for alleged conflict of interest
The Sandra Bland Act required counties to have a separate agency investigate all deaths in county jails, and may have used the Texas Rangers, including at 7 jails run by LaSalle Corrections, a private prison contractor with a problematic history. The Dallas News reported alleged conflicts of interest, with the company hiring a former Ranger who's son presently oversees the Rangers at DPS. While not alleging misconduct, the Commission on Jail Standards has decided to pick a different agency to investigate LaSalle-run facilities.

In praise of pretrial-detention algorithms, the 'failure to appear fallacy,' Louisiana ↓ technical revocations, and other stories

Several national items merit Grits readers' attention here during the calm before the 86th Texas Legislature storm.

Debtors-prison reform: Economic populism and the justice system
The New York Times this week published a lengthy, excellent feature on how criminal fines and fees oppress the poor. Good analysis and background.

Best evidence supports use of risk assessments in pretrial release decisions
Some prominent heavyweight corrections researchers responded to criticisms in the press, not to mention by left-wing advocacy groups (I'm talking to you, ACLU of Texas), of risk-assessment algorithms used to aid pretrial detention decisions. One of the authors, Jennifer Skeem, has presented to Texas probation audiences, and is someone whose research Grits has relied on for years. Everyone concerned with the use of risk assessments in pretrial release determination should read this 20-page analysis. They show that the best evidence available - taking into account all the available studies about what works - supports use of risk assessments, which generate better safety outcomes and less unfairness than judges flying by the seat of their pants. The authors document consistent research-based findings that a structured decision making process, in which judges formally take pretrial risk assessments into account, produces the best results. If you care about bail reform, read this. Their analysis more or less coincides with Grits' views, perhaps because mine are to a significant degree influenced by Skeem's scholarship: Racial disparities created by validated risk assessments in pretrial detention decisions (the analysis differs for sentencing, predictive policing, and other risk-assessment uses) are measurably less problematic than disparities and injustices such assessments prevent.

The Failure to Appear Fallacy
A lot goes in to Failure To Appear (FTA) rates, and this extensive article from The Appeal offers one of the the more nuanced looks you'll see on the topic, including a detailed description of how judges in Harris County - most of whom were ousted in the last election cycle - sabotaged bail reform in an effort to artificially drive up FTA rates and use them as a "political football." Excellent background for bail reformers.

Louisiana successfully decreased technical-probation revocations; why can't Texas?
After the Texas Legislature created Intermediate Sanctions Facilities as part of the state's widely lauded 2007 probation reforms, the parole system was able to radically reduce the number of people sent to prison for technical violations. However, the probation system could never accomplish it: half of revoked probationers in Texas were sent away for technical violations, not because they committed a new crime. So I was interested to see the Pew Charitable Trusts researching causes for a big reduction in technical probation violations in Louisiana. The Bayou State was able to reduce the amount of time revoked probationers were incarcerated, reduce the number of revocations for new crimes (read: reduce crime), and save millions of dollars in incarceration costs, Pew found. If they can do it, why can't Texas?

Prisons during shut down
The Marshall Project has the best coverage I've seen of the brutal effects on federal prisons from the government shut down. MORE: From the Washington Post.

Bail injustice worst case
For all of the flaws which may exist in Texas' pretrial-detention system, they're minimal compared to the Philippines, which is the only other nation in the world besides (some states in) the U.S. that uses wealth-based bail to determine pretrial detention. Money quote: “When you are detained in Philippine jails, you are being tortured.”

A primer on the current status of bail-reform litigation in Texas

Are you confused about the status bail reform in Texas?

First Judge Lee Rosenthal issued a 193-page injunction in Harris County declaring their pretrial detention system unconstitutional. Then the 5th Circuit modified her order. Then the county made some changes. Then the 5th Circuit stayed part of the injunction it had previously approved. Then another federal judge in Dallas declared their bail system unconstitutional, issuing his own temporary injunction with different recommendations. And there's also litigation sitting out there in Galveston. Meanwhile, Gov. Greg Abbott and Texas Supreme Court Justice Nathan Hecht have proposed that the Texas Legislature enact bail reform. But how does what they want jibe with what the federal courts are saying, to the extent that can be divined? And how should occasionally-maligned risk-assessment tools be used as part of this process?

For a segment in the latest Reasonably Suspicious podcast, your correspondent sat down with Susanne Pringle, legal director of the Texas Fair Defense Project, which is one of the entities suing both Harris and Dallas Counties, to get a front-lines explanation of where Texas is at on bail reform and what all this means.

Because I imagine MANY people are as confused as I was about how all these moving parts fit together, I've pulled out that segment as a stand-alone audio file, and will include the transcript below. You can listen to Ms. Pringle's explanation here. I, for one, understood things a lot better after we talked. Give it a listen:

Find a transcript of our conversation after the jump.

TX Judicial Council recommendations on bail reform

Check out the Texas Judicial Council's legislative recommendations related to pretrial detention/bail reform, and the description of the risk assessment instrument they're recommending to legislators in committee hearings.

From the handout: "A recent study showed that defendants who spent three or more days in jail were more likely to lose employment, report serious financial difficulty, experience issues with residential stability and less likely to be able to support dependent children."

And a mere three days of pretrial detention, for many defendants, would be a welcome respite from the reality: "Nearly 20% of felony cases take more than a year to dispose and more than 50% percent of misdemeanors remain pending over six months – meaning individuals held in jail while awaiting trial stay for considerable amounts of time."

With Gov. Abbott having entered the mix over the summer, vowing to name bail-reform legislation after a dead state trooper whose killer he believes shouldn't have been released on bail, one of the shortest distances to passing bail reform would be if a meeting of the minds between Gov. Abbott, himself a former Texas Supreme Court Justice, and current TSC Chief Justice Nathan Hecht could form the basis for consensus among statewide elected officials. So the details of what the Judicial Council proposes on this score are important, and likely form the basis for bail-reform legislation next year.

Some of the things Gov. Abbott wants done regarding preventive detention would require a constitutional amendment, which requires a two-thirds legislative vote in both chambers, as opposed to a simple majority in the House and 3/5 in the Senate, as is required for regular legislation.

With Gov. Abbott's sudden interest, bail reform is shaping up to be a major #cjreform topic during the 86th Texas Legislature. However, even if something like SB 1338 from last session is able to pass this time - and given the motivated fervor and deep pockets of bail-industry opposition, that's not a sure thing - measures that require changing the constitution may still end up being hard-fought votes.

What the judges want: Judicial Council recommendations to the #txlege

The Texas Judicial Council last month issued its recommendations to the Legislature on criminal-justice reform heading into the 86th session in 2019. Let's take a look at what judges are asking of the Texas Lege.

'Data! Data! Data! I cannot make bricks without clay'
Although listed under the heading for opioids, a recommendation to improve statewide collection of case-level court data deserved to be highlighted more prominently. The Council wants Texas to  begin collecting:

relevant case level data from all court levels including magistrates, to generate more timely and detailed information to support policy, planning, management, and budget decisions for the justice system. The collection of the relevant case level data should be fully funded by the Legislature.

This recommendation would have policy making implications well beyond the opioid crisis, and would benefit legislators themselves as much as anyone. As Grits mentioned earlier this week, you can't manage what you can't measure. And there are large swaths of the justice system that cannot be managed because it's impossible to talk with precision about exactly what's happening on the ground. Case-level data could help change that. (MORE: A helpful commenter pointed out the Council put out a separate set of recommendations specifically addressing data issues; see here.)

Establish an Opioid Task force
Yawn. Outside of Houston, meth is the bigger problem in Texas. And solutions on overdose deaths are the same no matter which drugs we're talking about.

'Pretrial Decision Making Processes'
The Judicial Council recommended eight different items on bail reform, providing a comprehensive roadmap for the Legislature to shift from money bail to risk assessments when determining pretrial detention. The list includes both statutes and constitutional amendments necessary to implement the plan, with rulemaking at the Office of Court Administration to flesh out the details within a "sufficient transition period."

In the Judicial Council's vision, all defendants would be assessed for potential risk with a validated instrument developed by the Office of Court Administration. The state constitution would be amended to a) create a presumption that defendants will be released on personal bond and b) allow judges to detain defendants they deem to be a public safety risk regardless of their ability to pay.

They want the Legislature to help fund pretrial supervision as well as training for magistrates and others making bail decisions. They also want the Lege to require data collection on pretrial-release decisions as part of the reforms.

Getting the Governor Out of Specialty Court Oversight
This one is interesting. Under Gov. Rick Perry, specialty courts in Texas blossomed. Today, "Over 190 specialty court dockets operate across Texas, including DWI court, drug court, family drug court, veterans court, mental health court, and commercially sexually exploited persons court," with the Governor's Criminal Justice Division the largest funder. But this was the prior Governor's priority, not this one. So it's little surprise that the Judicial Council might suggest that "certification and oversight" of specialty court programs be shifted from the Governor's CJD to the Office of Court Administration, which answers more directly to the judiciary.

The Council noted that current practice in Texas is out of step with national norms; only one other state places oversight authority for specialty courts with the Governor.

Firearms
This was clearly their most tentative proposal. Of all the things judges might request to stop mass shootings, asking the Legislature to fund better data entry into the national background check system is one of the least controversial, least bold, and least-likely-to-make-a-big-difference reforms you might name. But it's the only thing they could come up with.

No IAC Fix Suggested

One item Grits noticed was conspicuous by its absence. On the Court of Criminal Appeals, Judge Elsa Alcala has been calling for a legislative fix on ineffective assistance of counsel, which for the most part can only be challenged via habeas-corpus writs where defendants do not have access to an attorney. After four US Supreme Court justices raised the same issue in a recent dissent, Grits thought the subject might secure the Judicial Council's attention. I don't know whether they considered it or not, but clearly it didn't make the final cut.

Critique of bail reform and public safety ignores best evidence

An odd editorial last month on the TribTalk site by Stacie Rumenap, identified as President of Stop Child Predators, titled, "Bail reform: A slap in the face to victims and survivors," deserves Grits' readers attention as an example of fallacious anti-bail reform arguments.

The whole article is premised on conflating violent sexual predators with the masses of low-level folk who cycle through the average county jail on everything from marijuana possession to driving with an invalid license. For example, she writes:

it’s my job to educate families on sexual assault prevention and to stem the tide of dangerous trends that allow predators to roam our streets and commit such grotesque crimes in the first place. 

That’s why I am surprised that proponents of bail reform are calling for changes that will make it easier for criminals to get out of jail and recommit crimes in Texas, a state that has historically remained “tough on crime.”

That "criminals" category cuts a wide swath, capturing rapists and pot-possessors in the same breath. But surely the public interest in detaining those two categories of offenders differs widely? Can we really make no distinction between them?

Rumenap further lamented that  "reformers are not taking into account the impact bail reform will have on victims of sexual assault, especially child victims of sexual assault. The silence has been deafening. Bail reform has resulted in widespread release of defendants without bail and without consequence, raising alarming questions about public safety."

Let's stop right there and say that, no, in fact the exact opposite is true! Public safety is probably the strongest argument for using risk assessments instead of money bail. The best reason to do it is precisely to have less violent crime!

The Public Policy Research Institute at Texas A&M studied the pool of released defendants in Travis and Tarrant Counties, which use a risk-assessment and money bail system, respectively, over three-and-a-half years to compare outcomes.

During that period, the study found, released defendants in Tarrant County were responsible for 20 percent more crimes committed and 12 percent more serious violent crimes. Here are the details (p. 49):

financial bond is less effective at preventing involvement in criminal activity. The rate of new offending stands at 13.5% in the financial release system, a rate 20% higher than in the risk-informed system (11.1%). Violent offending is also 12% more prevalent where people are released based on ability to pay – 2.7% in Tarrant County compared to 2.4% in Travis County. Of all offenses committed by people on bond, 50% more are violent felonies where release is determined by financial ability (7.5% versus 4.9% in the risk-informed jurisdiction). 

So more crimes were committed by pretrial defendants under the money-bail system, and a much greater proportion of those (50% more!) were violent crimes.

Perhaps most significantly, as Grits has noted before, there were zero murders committed by pretrial defendants under the risk-based system in Travis, compared to ~18 under a money bail system in Tarrant.

In other words, the best, Texas-based research found exactly the opposite of what Ms. Rumenap is claiming.

That's why anyone seriously concerned about public safety in light of these numbers should support risk-based bail reform. There may be other valid arguments against using risk assessments (e.g., they work best as part of a well-developed pretrial services system that doesn't everywhere exist). But the best public-safety arguments are on the side of reformers.

SEE ALSO: Responses on TribTalk to Rumenap's article from the Smart on Crime Coalition and Mary Mergler of Texas Appleseed.