The Texas Judicial Council (TJC) in 2015 established a “Criminal Justice Committee” to study bail practices in the state. The Committee recently released its 18-page report (October 2016) titled “Pretrial Decision-Making Practices” that calls for specific reforms in the state’s troubled bail system.
Citing an observation made by the late U.S. Supreme Court Chief Justice, William Rehnquist in the 1987 decision, United States v. Salerno, “in our society liberty is the norm, and detention prior to trial…is the carefully limited exception,” the report opened its analysis with this striking finding:
“Despite these bedrock principles, many defendants are detained in jail before and during trial – while they are presumed innocent – because they cannot post bail. In the past 25 years, the pretrial population in Texas jails has risen from just over 32 percent of the population to almost 75 percent of the population, excluding federal contract inmates and state parole violator inmates.”
According to the Texas Commission on Jail Standards, there were more than 41,000 jail inmates in Texas as of June 1, 2016. The annual cost to local governments to house these pretrial inmates is roughly $905,028,085, according to the Commission.
Beyond these staggering fiscal expenditures lie the human costs. The TJC found that 25 percent of the defendants in felony cases will spend more than one year in jail before disposition of their case while 56 percent of the defendants in misdemeanor cases will spend over six months.
Worse yet, the TJC referred to a 2016 study from Philadelphia (“Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes”—May 2, 1016) that found pretrial detention increases the likelihood of conviction by 13 percent “due to an increase in the number of guilty pleas among defendants who would have otherwise been acquitted or had their charges dismissed.”
Inevitably, race plays a major role in the nation’s bail system. The TJC referred to “over 25 research studies” that found African-Americans defendants “are more adversely impacted by pretrial detention decisions than are white defendants.”
This racial discriminatory practice occurs in Texas as well. The TJC cited a study of the Dallas County bail system that showed there was “’substantial evidence of bias against blacks in bail setting.’”
The same bias applies to Hispanic defendants.
In 2008, a study titled “Pretrial Release of Latino Defendants Final Report” prepared by David Levin found that of those subject to pretrial detention, Hispanics are “mostly likely to have to pay bail, the group with the highest bail amounts, and the groups least able to pay bail.”
The TJC found the following nine specific flaws in the current Texas bail system overseen by magistrates:
After issuing this blistering indictment of the current Texas bail system, the TJC made the following eight recommendations to the state’s Legislature
The TJC goes on to provide a detailed analysis of why each of its recommendations should be adopted by the Texas Legislature. The TJC’s report offers the Legislature a road map to help address and correct the laundry list of inequities and flaws in the state’s current bail system. We can only hope that lawmakers will seize this opportunity.
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