Texans deserve a bail system based on risk, not riches
This article was written by Brett Tolman and Nikki Pressley.
Last month, off-duty New Orleans Detective Everett Briscoe and his friend. Dyrin “DJ” Riculfy, were shot and killed during an aggravated robbery in Houston.
The tragedy surrounding their slayings was only aggravated by the news that their suspected killers had been walking free on a combined six felony bonds, including cash-free bonds, a $40,000 bond for aggravated assault with a deadly weapon, and $75,000 for robbery. A judge had revoked the bond for one of them after he failed to appear in court.
Sadly, this cycle of violent reoffending has been a common theme in Harris County and throughout the state. Due to a broken bail system primarily based on ability to pay rather than the individual’s risk of being a danger to others, many high-risk offenders are released while low-risk offenders are left sitting in jail. This system continuously puts Texans in danger, and it must change.
Just days after the senseless killings of Briscoe and Riculfy, the Legislature passed Senate Bill 6, named the Damon Allen Act in memory of a state trooper who was murdered by an individual out on bond in 2017. It is now on Gov. Greg Abbott’s desk, waiting to be signed into law.
The Damon Allen Act will be a first step in reforming Texas’ broken pretrial system and is critical to the protection of our communities. Abbott rightfully declared bail reform an emergency item in the 87th Legislature, allowing conservative lawmakers to take the lead on this issue.
Largely a Republican-led effort, lawmakers spent months gathering bipartisan support for this reform that will improve training for magistrates, increase transparency in the pretrial system and provide magistrates with more information when making bail decisions. The reform also bans cashless releases for defendants charged with violent and sex offenses. Low-risk defendants are now ensured the least restrictive bond to avoid pretrial detentions for no reason other than they cannot afford bail.
However, while limiting the use of personal recognizance bonds will prevent high-risk defendants from a cash-free release, these defendants will still be granted the opportunity for release via cash bail. In Texas, the accused have a constitutional right to bail — meaning unless a defendant is charged with capital murder or meets a certain criteria for repeat violent felonies, the judge cannot detain a defendant, but must afford that defendant bail, no matter how dangerous they believe that defendant to be.
This creates a system in which high-risk defendants who can afford bail can buy their freedom — despite the public safety threat they pose.
Legislators had the opportunity to fix this issue. The proposed constitutional amendment, SJR 3, would have afforded judges the discretion to deny bail where certain violent and sexual offenses were concerned. This is generally referred to as preventative detention.
Allowing judges to detain high-risk defendants who pose a threat to public safety prior to trial is not rocket science. It’s not unorthodox or even groundbreaking. In fact, many states allow for the denial of bail for a variety of offenses and circumstances beyond capital murder, and nine states do not have a constitutional right to bail. And the federal criminal justice system relies almost exclusively on a risk assessment to determine pretrial detention.
Preventive detention is not designed to strip defendants of their due process rights or disregard the presumption of innocence. Everyone has due process rights, and everyone is innocent until proven guilty. However, the Supreme Court has ruled that not everyone has the right to bail. In this ruling, the justics affirmed that both court appearance and public safety should be considered when determining pretrial release conditions; if there are no conditions that would reasonably ensure the safety of the public, then pretrial release can be denied.
Unfortunately, the expansion of pretrial detention fell victim to a political tug-of-war and a misinformation campaign organized by opponents from the left. Magistrates are now left trying to guess just how high is high enough for a bond on a defendant who poses a threat to their community.
Bail has proven a poor pretrial mechanism to ensure public safety. The killings of Allen, Briscoe and Riculfy, the countless other victims, and their families, demand a rightsizing of the pretrial system. This means giving judges the discretion to deny bail when it is the only way to protect Texans.
While we celebrate the Damon Allen Act being signed into law, critical work remains to be done before the state pretrial system will truly serve in the interest of Texans’ safety. When the Legislature reconvenes in 2023, we must continue to strive for a system based on risk, not riches.