As the 87th Texas Legislative Session begins (and is scheduled to run through May 31, 2021), Supreme Court of Texas Chief Justice Nathan L. Hecht has weighed in on an important and surprising topic: bail reform.
Chief Justice Hecht, along with David Slayton, Administrative Director of the Office of Court Administration, submitted an opinion piece to the Dallas Morning News (DMN). Entitled, “If Texas doesn’t reform its bail system, federal courts likely will,” it is really worth a read.
Now you may be asking yourself, why is a civil appellate justice – whose legal background includes partnership at a white-shoe firm in Dallas — wading into the mostly criminal law issue of bail reform? That’s a fair question. Perhaps the answer lies in the landmark settlement in November 2019 of a federal lawsuit successfully challenging the automatic wealth-based detention of tens of thousands of impoverished people every year in misdemeanor cases in Houston. Chief United States District Judge Lee Rosenthal approved an agreement aimed at releasing 90-95% of misdemeanor arrestees in Harris County, without substantial cash money or a surety. Unfortunately for taxpayers, it was not before Harris County spent $9.1 million on outside legal help defending an obviously unconstitutional bail system. The settlement also required Harris County to pay an additional $4.7 million in legal fees for the plaintiffs.
Whatever the motivation for what appears to be a bipartisan effort to address bail reform at this moment in our state’s history, Chief Justice Hecht’s opinion is a welcome addition to a debate that has raged for many years. He is the top state jurist in Texas and our governor and state legislators listen to him. We criminal practitioners should, as well.
Chief Justice Hecht’s and Administrative Director Slayton’s well-written, five-point proposal for bail reform raises some difficult questions. Here is how criminal defense lawyers and our many allies should respond to each point in the DMN piece:
- “[G]ive judges validated pretrial risk assessment information for all defendants to make better-informed decisions about bail.” – Putting aside the difficulty of confirming underlying information in a pretrial risk assessment and statistically tracking it for validation, I think we can all agree that more information is better. The problems here are, (a) it might be enormously expensive to implement systems in all 254 Texas counties and, (b) getting risk-assessment information into the hands of judges, magistrates, prosecutors, and defense lawyers (when the accused has counsel), might slow down the process of bail and release. Even an extra day in jail might mean the difference between a person going back to work versus losing their job. Risk assessments hardly seem worth it for most misdemeanors and non-violent felonies. Perhaps risk assessments — which are already done in many Texas jurisdictions — should only apply to certain categories of felony offenses, where the nature of the alleged crime dictates a heightened scrutiny of the bail process.
- “[A]sk voters to amend the Texas Constitution to allow judges to hold high-risk, potentially violent defendants without bail.” – This is a non-starter. Article 1, Sec. 11a of the Texas Constitution provides a laundry list of situations in which potentially dangerous arrestees may be held without bail. These include arrestees with multiple prior felony convictions, defendants who commit a felony while out on bail for an indicted felony offense, arrestees accused of using a deadly weapon after being convicted of a prior felony, and arrestees who allegedly commit certain types of violent or sexual offenses. Additionally, Article 1, Sec. 11b allows for detention without bail of arrestees accused of felonies or offenses involving family violence, when bail is subsequently revoked or forfeited for a violation of a condition of release. Texas already has enough legal tools to hold people without bail. We don’t need any new ones. Bail reform must not be predicated upon activist measures to hold presumptively innocent people indefinitely, while their cases await trial. Doing so would defeat a major purpose of bail reform — namely, to make it easier for the accused to gain their freedom while awaiting resolution of legal matters.
- “[P]rovide pretrial supervision for those released.” – This is another expensive and unnecessary proposal. Texas judges already have authority to set conditions of bail and place defendants on pretrial supervision. What’s the point of mandating it? We should trust trial court judges to order pretrial supervision only in cases where it is most appropriate.
- “[C]ollect data to verify that the system is working as it should.” – This is an excellent proposal, provided we can all agree on criteria for determining when the system isn’t working and what to do about it. Any data collection and verification provision in bail reform legislation should not include some automatic solution that kicks in when, say, a certain percentage of arrestees miss their court dates. You don’t fine-tune an expensive vehicle with a sledge hammer.
Bail reform is an achievable and worthy goal, but it must be done right. We should be prepared to wait if it’s not. There is no question that Chief Justice Hecht and Administrative Director Slayton are correct when they say, if Texas doesn’t reform its bail system, federal courts likely will. In that vein and based on what we’ve seen thus far in federal lawsuits, Texas criminal lawyers and our allies should be willing to let this play out in federal courts if we can’t get reasonable proposals. TCDLA’s Legislative Committee, leaders, and lobbyists are interested in hearing more.