Let judges handle bail, and keep Texas safer

Published 11:43 am Wednesday, March 20, 2019

Originally published in Texas Tribune

In order for any criminal justice system to work properly, justice must mean something to the offender, to the victim and to the community. Justice cannot exist without accountability.

That’s the role of the judges we elect and the courts where they preside — to ensure those who break our laws are held accountable for their actions. But recently announced legislative proposals to reform the bail system in Texas turn that concept on its ear.

These proposed statewide reforms mirror those implemented in Harris County, including deploying an algorithm-based risk assessment tool to determine whether or not a defendant should be released on personal recognizance rather than on cash or surety bail. Under the guise of fairness, these computer programs take decisions about pretrial release out of judges’ hands, instead of plugging a variety of information into a machine and spitting out a recommendation.

These measures were introduced in Harris County as a way to keep the poor from languishing in jail as they await trial, but in the time since they’ve been implemented, they’ve become a blanket get-out-of-jail-free card. Harris County is now releasing 85 percent of misdemeanor defendants on personal bonds, and there are proposals to expand these policies to felony defendants as well.

That means criminal defendants arrested for murder, aggravated sexual assault of a child, methamphetamine production and distribution and human trafficking, among other crimes, will simply be able to sign their names and walk out of jail with nothing more than a pinky promise that they’ll reappear for their court dates. It will shock no one to hear that since Harris County instituted these policies for misdemeanor cases, almost 40 percent of defendants released on unsecured bonds failed to appear for their scheduled court date, compared to 10 percent of defendants released on commercial bail.

Unfortunately for many criminal defendants, the cycle of crime continues when there are no consequences for breaking the law, and they dig themselves in deeper and deeper. A recent armed crime spree in Pasadena is just the latest example of this failure of accountability.

As a judge, I never wanted to see the same defendant in my courtroom twice. I can guarantee that our law enforcement officers don’t want to arrest the same defendant twice. Aside from the unnecessary danger, they inflict on our communities, revolving-door policies like those being considered by the Legislature are a massive waste of resources on an already overburdened criminal justice system.

None of this means that some reforms aren’t necessary. The 5th U.S. Circuit Court of Appeals made clear in its ruling on Harris County’s bail policies that the process for administering bail needed to be fixed, not that the entire system was unconstitutional, as some have said. The court required Harris County to begin having individual bail hearings within 48 hours of arrests and for judges to consider the necessary factors for setting bail that is mandated by current Texas law, including victim and public safety, a defendant’s likelihood to reappear for court dates, as well as the defendant’s ability to pay including resources of friends and family. There should never be a presumption that a defendant is entitled to release solely because they are poor.

Harris County could have complied with the court’s ruling, but instead opted to needlessly and recklessly implement algorithm-based release programs. In an effort to correct a deficiency in the system, they have gone too far in the other direction.

The better alternative, which Gov. Greg Abbott has called for, is to improve information sharing between magistrates. You cannot expect a judge to make a fully informed decision about pretrial release without giving that judge access to a defendant’s full criminal history.

Let the men and women we elect to administer justice decide how best to administer it. Don’t tie their hands by outsourcing that decision to an algorithm. And don’t ask them to make pretrial release decisions blindfolded, without the full picture of a criminal defendant’s background, as is the case currently.

This will get defendants through the process more quickly, ensure those who are truly dangerous aren’t released into our communities arbitrarily and hold individuals who commit crimes accountable for their actions.

Only then can we say justice means something.

Ted Poe is Former U.S. Representative