The Texas Legislature may be on the verge of doing something extraordinary. It may be about to bring some rationality to our system of dealing with persons accused of non-violent and, many times, minor crimes as they wait for trial.
Throughout Texas, thousands of defendants awaiting resolution of their cases sit in jail for extended periods of time for one simple reason: They can’t afford to pay a bail bondsman.
Many of these people are neither dangerous to the community nor flight risks — the two rational standards for incarcerating them during a period when they are legally presumed to be innocent.
Efforts at addressing this issue in the past have failed because of the strength of the bail bond lobby. But this session's hopes for reform are being fed by two factors. One is an extraordinary coalition that includes both Texas Supreme Court Chief Justice Nathan Hecht and Court of Criminal Appeals Chief Judge Sharon Keller. Neither is considered a bleeding heart liberal.
The other factor: A federal lawsuit in Harris County arguing that the cash bail system is illegal and possibly unconstitutional.
That lawsuit received a boost earlier this month when two of the named defendants — Harris County Sheriff Ed Gonzalez and Judge Darrell Jordan — agreed with the plaintiffs.
“When most of the people in my jail are there because they can’t afford to bond out, and when those people are disproportionately black and Hispanic, that’s not a rational system,” testified Sheriff Gonzalez.
Judge Jordan, one of the 16 judges named as defendants, testified he ignored county guidelines and liberally granted no-cost personal recognizance bonds after seeing research indicating keeping people in jail awaiting trial made them more likely to become repeat offenders.
The lawsuit has already helped push Harris County into reforms, but bills being considered in the Legislature would go further.
The bail bond industry will fight the legislation fiercely. Their lobbyists will argue that by posting bonds — for a fee often paid by family members — they ensure that the accused will make their court dates.
But a recent report by Texas A&M’s Public Policy Research Institute compares the costs and effectiveness of Travis County’s use of a risk assessment program to let many people out of jail without bond to Tarrant County’s more traditional approach.
Travis County uses a sophisticated risk assessment instrument to release 60 percent of its inmates on personal bond. Tarrant County gives such no-cost or low-cost release to just 6 percent of pre-trial inmates.
In 2010, the first year Travis County used its system, 13 percent of those released without using a bondsman failed to report to court on their assigned dates. That sounds high until you learn that 20 percent of those released through commercial bondsmen failed to appear. In succeeding years, Travis County’s non-appearance rate would become lower.
Meanwhile, the Texas A&M study showed those released under cash bonds were significantly more likely to commit felonies and violent crimes than those released through the screening instrument.
Then there are the cost savings. Keeping people in jail is expensive. Through a number of progressive programs, especially involving the mentally ill and low-level drug users, Bexar County has become a leader in reducing the number of prisoners awaiting trial in jail. Still, the Texas Fair Defense Project estimates Bexar County would save $1.6 million a year if they used a release program similar to Travis County’s.
The ball is now in the Legislature’s court. Their choice could well be between standing up to the bail bond lobby — or waiting for a federal judge to bail them out.