Rules for bail punish the poor

Low-income criminal defendants in Texas face an uneven playing field in the criminal justice system.

A person is supposed to be considered innocent until proven guilty, but bail bond rules across the state often penalize those at the bottom of the economic ladder by keeping them in jail while awaiting trial.

In the past couple of decades, county jails have become holding facilities for people who have been arrested and do not have the money to post bond until their court date. Approximately 75 percent of inmates in Texas jails are awaiting trial; in the 1990s, that percentage was only about 32 percent, according to the Texas Commission on Jail Standards.

About one-quarter of the inmates held in county jails on criminal charges pose little public threat but remain incarcerated due to their inability to make bond, revealed a recent study by the Texas Judicial Council, the policymaking body for the state judiciary.

At a daily cost of $60.12 to house an inmate in a county lockup, the numbers add up quickly. The Texas Judicial Council is asking state lawmakers to seek amendments to the Texas Constitution and criminal code that would allow more people to be considered for personal recognizance bonds.

An interim study of the state’s pretrial bond practices found the rules imposed by local judiciary are restricting the range of options offered defendants at arraignment, even when the defendants present a low risk of flight or danger to the community.

Magistrates who are appointed to handle incoming cases are limited by local policy, set by elected judges, from considering certain individuals for personal recognizance bonds, which is bail that does not require the posting of any cash.

The council is proposing legislation that would allow more uniformity in the handling of all incoming cases. It would like magistrates to allow the use of risk-assessment tools to help gauge an individual’s flight risk and whether that person would be likely to show up in court as ordered.

At present, about 20 percent of felony cases take more than a year to go to court and 56 percent of misdemeanor cases are pending more than six months. This means some defendants are incarcerated for long periods as they wait to have their cases resolved. Sometimes defendants will plead guilty just to reduce their jail stays.

Risk assessments would allow magistrates to evaluate each case based on the possible punishment for the offense, the accused’s work history, family ties, stability of residency and prior criminal record, and any aggravating circumstances, among other things.

In Bexar County, a defendant with a record is automatically disqualified from being considered for a personal recognizance bond. We can understand the liability of releasing those with a smudge on their record who then commit a more serious offense. The council is not seeking a one-size-fits-all solution and is proposing that magistrates receive training in assessing and evaluating risk factors.

In 2015, there were 21,531 individuals arrested who could have qualified for a personal bond interview under state guidelines but were not allowed one under the local rules in counties across the state.

Those who don’t qualify for a personal recognizance bond and don’t have the means to pay the bond in cash often resort to the services of a commercial bail bond company. The cost of a commercial bond is usually 10 percent of the bail amount set and often requires the pledging of collateral in the form of an auto title or property deed.

Any amount of time in jail for low-income defendants can carry severe financial consequences if they cannot report to work or support their families.

The disparities in setting bail have been the focus of much research. A 2014 study found that African-Americans are subject to higher bail than whites with similar charges and criminal histories.

Another study on pretrial release found that Hispanic defendants are “most likely to have to pay bail, (are) the group with the highest bail amounts, and the group least able to pay bail.”

Any proposed legislative changes are bound to meet with strong opposition from the commercial bail bond industry.

We urge support for proposed changes. There likely would be some pretrial supervision costs involved under any expansion of personal recognizance bond programs, but it would be substantially less than the cost of incarcerating low-risk indigents because they can’t afford bail.