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A Better Bail System for Texas

| May 22, 2017

This article originally appeared in the El Paso Times on May 19, 2017.

We all know that, in America, a defendant is considered innocent until proven guilty, and it can be too easy to take that for granted. After all, it’s government that bears the burden of showing beyond a reasonable doubt that the law has been broken, and only at that point may a sentence by handed down.

Many defendants in Texas are nonetheless detained in county jails before and during trial — in a large number of cases, because they simply cannot afford bail. Worse still, dangerous criminals are being released pre-trial simply because they can: one study showed that defendants released on bond in Tarrant County committed 18 homicides over a three-and-a-half-year period.

Defendants who spend even short periods in jail are more likely to lose employment and are less able to support dependent children. In the eyes of the law, these individuals are innocent, but can still be held in pre-trial confinement for months, or even years.

As of April 1, over 62 percent of those held in Texas county jails were awaiting trial — up from 32 percent a quarter-century ago. A small number of these pose a flight or offending risk. Housing these pre-trial inmates has an estimated price tag of roughly $900 million a year.

The question about what can be done about pre-trial detention centers around current bail practices; those who have paid attention know that these practices have been coming under withering scrutiny.

Harris County, for example, was just rebuked by a federal district court for its “fundamentally unfair” bail system, which had been detaining indigent defendants for low-level offenses on the sole basis of their inability to pay bail.

Most counties across the state maintain the same money-based system that’s landed Harris County in hot water. Because cash bail is agnostic as to an individual’s risk, even those who pose an ongoing threat to the community can still post bond and be out on the streets.

Meanwhile, lower-level defendants often times remain confined for no other reason than being poor.

One potential improvement making its way through the Texas Legislature, however, would implement the use of validated risk assessments. Research shows that consideration of various risk factors when making bail decisions would improve public safety, decrease costs to local governments, and minimize many of the aforementioned collateral consequences of extended pre-trial confinement.

Texas A&M University recently found that defendants released in Tarrant County, which primarily uses cash bail, committed 53 percent more violent felonies — including homicide — while out on bail than those released in Travis County, which uses risk assessments.

Jailing defendants is a costly burden for local governments. To be sure, dangerous individuals should remain detained before trial. But current bail practices amount to shaking a Magic-8 Ball in determining who actually presents that danger — leaving many low-risk, cash-strapped defendants stuck in jail because they can’t purchase their release.

It’s long past time to breathe some innovation into a stale practice that isn’t adapting to modern realities. Furthermore, it’s better to fix these problems voluntarily than receive a judicial mandate. We can achieve better outcomes — for the public and defendants alike — and pre-trial risk assessments can help get us there.

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MICHAEL HAUGEN is a policy analyst at the Texas Public Policy Foundation and its Right on Crime initiative.

Haugen is a graduate of Eastern Washington University, with a Bachelor of Science degree in Biology with Pre-Medicine Option, and a minor in Chemistry. He also holds an Associate of Arts degree in General Studies from North Idaho College. As an undergraduate, he participated in academic research in a molecular microbiology laboratory for two years, investigating genetic virulence factors and pathophysiology in microbes.

A blogger on his personal site for the last two years, he has provided insight into current topics in the news, Second Amendment issues, pro-life advocacy, as well as commentary on various ballot initiatives that have arisen in his native Washington State in recent years. His writing has appeared in National Review, Townhall, Washington Examiner, Trib Talk, and Breitbart Texas.

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