Dear john, House Joint Resolution 62 [2] proposes "a constitutional amendment authorizing the denial of bail to an accused person if necessary to ensure the person's appearance in court and the safety of the community and the victim of the alleged offense." As HJR 62 is to be heard by the House Criminal Jurisprudence Committee, we thought we would give the committee some information to think about as you consider whether the expansion of preventative detention in Texas is a good idea or warranted in the first place. First, the original draft of the House Joint Resolution was intended to implement the so-called no money bail system. The original draft allows for a prosecutor to request detention for anyone for any crime, including misdemeanors. We don't think general preventative detention statutes are constitutional, nor do we support them. Since the move to the no money bail system has now been abandoned, now the question is what problem is the amended preventative detention HJR 62 trying to solve? Does it need to be run anymore if judges will retain the power to set monetary bail? We don't think so. In fact, we think there is no need to expand preventative detention in TEXAS, WHICH ALREADY HAS MORE PREVENTATIVE DETENTION ALLOWED THAN NEARLY ANY STATE. In fact, 38 states currently do not allow for preventative detention except in capital cases.[1] The other 22, including Texas, allow for denial of bail in certain crimes or circumstances. Texas's provisions are some of the more expansive in the nation. Now, it is posited that instead the HJR be amended and that all so-called 3G crimes be included regardless of whether it is the first criminal charge a person has ever faced or not. Yet, Texas has already deviated, starting in 1956, from the original language of the state constitution in Section 11 (which dates to the Massachusetts Constitution of 1641) by adding three categories of exceptions where a person may be denied bail altogether and preventatively detained, Sections 11a, 11b, and 11c. THESE EXCEPTIONS ALREADY DRAW A CLEAR LINE ON REPEAT FELONY OFFENDERS, VIOLENT OFFENDERS, AND THOSE WHO COMMIT CRIMES OR VIOLATE CONDITIONS WHILE ON BAIL.[2] Then, in 2005, the voters expanded preventative detention again, this time by allowing it for people charged with family violence offenses who violate their terms of release.[3] Another expansion of preventative detention then occurred in 2007: allowing for preventative detention if a person, already on bail for a family violence charge, violates the protection order.[4] In short, Texas has already dealt with this issue over a period of the last 60 years. Each of the exceptions make sense and requires some element of prior criminality or prior failure in order to impose preventative detention. Importantly, the proponents of this legislation cannot point to what the specific problem it is they are trying to solve. THEY CANNOT POINT TO ANY DATA THAT THOSE CHARGED WITH A PARTICULAR CLASS OF OFFENSES ARE PER SE MORE LIKELY TO FAIL TO APPEAR IN COURT OR ARE MORE LIKELY TO COMMIT A NEW CRIME WHILE ON BAIL. They have yet, over the two-year history of this movement of preventative detention, to present any data that a particular offender charged with a particular crime is more likely to commit more crimes while on bail or fail to appear in court. This is a significant problem, because the U.S. Supreme Court only allowed for the expansion of preventative detention because Congress had made extensive findings as to the problems of crime while on bail on these specific individuals who had a high rate of committing new crimes while on bail. Said Chief Justice Rehnquist: "Congress specifically found that these individuals are far more likely to be responsible for dangerous acts in the community after arrest." In short, this is merely a pivot from the original no money bail system to something that seems more reasonable, but such is not evidence of its necessity. Further, we think the current trend of expanding preventative detention is not a good one. It must be stopped, we believe, otherwise the trend will be to have continuing legislative proposals based on salacious factual cases that will be a slow march to the federal system, which has increased pretrial detention from 24% in 1983 to 73% today. Next, one of the best articles you can read on this topic is an article entitled _Preventative Detention: A Constitutional But Ineffective Means of Fighting Pretrial Crime_.[5] This article explains why expansions of preventative detention do not work as a crime control policy despite the push by advocates. The existing bail system is flexible enough to handle this issue, and the idea that rich, repeat violent gangsters get out is contradicted by the existing Texas Constitutional provisions. Anyone who comes in with a hard on crime message of preventative detention can say that they are being hard on crime and all they are doing is protecting the public, but they are not preventing crime and are instead are just being overly harsh on people, some of whom are innocent of the charges. Further, we think Judge Kearse's opinion rejecting the constitutionality of preventative detention, later over-turned in _Salerno_, is worth a read as you consider whether preventative detention should be expanded as a matter of sound public policy. While Texas is allowed to expand preventative detention legally, that doesn't mean it is good policy, as Judge Kearse said: "The liberty protected under that system [of due process] is premised on the accountability of free men and women for what they have done, not for what they may do. The Due Process Clause reflects the constitutional imperative that incarceration to protect society from criminals may be accomplished only as punishment of those convicted for past crimes and not as regulation of those feared likely to commit future crimes."[6] Next, we think this legislature needs to protect and uphold the constitution of the State of Texas, and not allow jurisdictions to violate the right to bail by implementing their own schemes. In Harris County, for example, it appears the judges just decided 15% of misdemeanants were not going to get out of jail under the new bail policy. UNDER THE NEW BAIL POLICY, JUDGES ARE PERMITTED TO SET AN UNAFFORDABLE BAIL IN ORDER TO SPECIFICALLY DETAIN A PERSON, WHICH WE BELIEVE IS FACIALLY UNCONSTITUTIONAL UNDER THE FEDERAL CONSTITUTION BECAUSE IT PURPORTS TO ALLOW FOR PREVENTATIVE DETENTION IN MANY LOW-LEVEL CASES AND ALSO UNDER THE TEXAS CONSTITUTION WHICH SPECIFICALLY ENUMERATES WHICH CRIMES THOSE CAN BE.[7] This legislature needs to take a stand against these policies and tinkering with constitutional rights in the name of some movement. The right to bail should not depend on who is in power and who they decide are the "dangerous" or bad people or who they are say are the good people. The right to bail should be governed by the appropriate cases and the rule of law. The concept that misdemeanor defendants should get a no bail hold is the next move if Texas starts tinkering with the constitution again. Finally, we can never discuss preventative detention without saying you have to give the Supreme Court's decision in _U.S. v. Salerno_ a read, particularly the dissent by Justice Thurgood Marshall. Having read it probably a 1,000 times myself, I still believe he was right. Preventative detention should have been held unconstitutional in 1987 because as Justice Marshall said it is consistent with tyranny and it is a decision which will go forth without authority and come back without respect. Jeff Clayton, M.S., J.D. Executive Director American Bail Coalition [1] https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=0e9902e 9-d88c-0733-2c62-65145d8f6bf4&forceDialog=0 [3] [2] Sec. 11a. DENIAL OF BAIL AFTER MULTIPLE FELONIES. (a) Any person (1) accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor, (2) accused of a felony less than capital in this State, committed while on bail for a prior felony for which he has been indicted, (3) accused of a felony less than capital in this State involving the use of a deadly weapon after being convicted of a prior felony, or (4) accused of a violent or sexual offense committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, after a hearing, and upon evidence substantially showing the guilt of the accused of the offense in (1) or (3) above, of the offense committed while on bail in (2) above, or of the offense in (4) above committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, may be denied bail pending trial, by a district judge in this State, if said order denying bail pending trial is issued within seven calendar days subsequent to the time of incarceration of the accused; provided, however, that if the accused is not accorded a trial upon the accusation under (1) or (3) above, the accusation and indictment used under (2) above, or the accusation or indictment used under (4) above within sixty (60) days from the time of his incarceration upon the accusation, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused; provided, further, that the right of appeal to the Court of Criminal Appeals of this State is expressly accorded the accused for a review of any judgment or order made hereunder, and said appeal shall be given preference by the Court of Criminal Appeals. (b) In this section: (1) "Violent offense" means: (A) murder; (B) aggravated assault, if the accused used or exhibited a deadly weapon during the commission of the assault; (C) aggravated kidnapping; or (D) aggravated robbery. (2) "Sexual offense" means: (A) aggravated sexual assault; (B) sexual assault; or (C) indecency with a child. [3] Sec. 11b. DENIAL OF BAIL FOR VIOLATION OF CONDITION OF RELEASE. Any person who is accused in this state of a felony or an offense involving family violence, who is released on bail pending trial, and whose bail is subsequently revoked or forfeited for a violation of a condition of release may be denied bail pending trial if a judge or magistrate in this state determines by a preponderance of the evidence at a subsequent hearing that the person violated a condition of release related to the safety of a victim of the alleged offense or to the safety of the community. [4] Sec. 11c. DENIAL OF BAIL FOR VIOLATION OF PROTECTIVE ORDER INVOLVING FAMILY VIOLENCE. The legislature by general law may provide that any person who violates an order for emergency protection issued by a judge or magistrate after an arrest for an offense involving family violence or who violates an active protective order rendered by a court in a family violence case, including a temporary ex parte order that has been served on the person, or who engages in conduct that constitutes an offense involving the violation of an order described by this section may be taken into custody and, pending trial or other court proceedings, denied release on bail if following a hearing a judge or magistrate in this state determines by a preponderance of the evidence that the person violated the order or engaged in the conduct constituting the offense. [5] https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6520&context=jclc [4] [6] https://casetext.com/case/united-states-v-salerno-6 [5] [7] https://pbtx.com/harris-county-new-bail-bond-procedures-as-of-1-17-19/ [6] More about the American Bail Coalition... The American Bail Coalition is the national trade association of commercial bail insurance underwriters whose members are responsible for underwriting criminal bail bonds throughout the United States of America. The Coalition's primary focus is to protect the constitutional right to bail by working with local and state policymakers to bring best practices to the system of release from custody pending trial. Jeff Clayton, Esq. is the Executive Director/Policy Director and can be reached at jclayton@americanbail.org or (877) 958-6628. Visit the American Bail Coalition  [7] [8] [9] Links: [1] http://link.quorumoutbox.com/f/a/TEgd6mzwuN0hcg3PaYhzA~~/AACYXwA~/RgRepCZAP0QbaHR0cDovL2FtYmFpbGNvYWxpdGlvbi5vcmcvVwNzcGNCCg AjWKHBXGYixPZSEWptY2NsdXM1MUBhb2wuY29tWAQAAAAA [2] http://link.quorumoutbox.com/f/a/ZMGtSzghPUwXSn9Aot4smA~~/AACYXwA~/RgRepCZAP0RIaHR0cHM6Ly9 jYXBpdG9sLnRleGFzLmdvdi9CaWxsTG9va3VwL0hpc3RvcnkuYXNweD9MZWdTZXNzPTg2UiZCaWxsPUhKUjYyV wNzcGNCCgAjWKHBXGYixPZSEWptY2NsdXM1MUBhb2wuY29tWAQAAAAA [3] http://link.quorumoutbox.com/f/a/maimEp77rPjLk_YXMF_7_w~~/AACYXwA~/RgRepCZAP0TXaHR0cHM6Ly9 oaWdoZXJsb2dpY2Rvd25sb2FkLnMzLWV4dGVybmFsLTEuYW1hem9uYXdzLmNvbS9QUkVUUklBTC9QcmV2Z W50aXZlJTIwRGV0ZW50aW9uJTIwQnJpZWYlMjAtJTIwTkNTQyUyMDIwMTcucGRmP0FXU0FjY2Vzc0tleUlkPUF LSUFKSDVENEk0RldSQUxCT1VBJkV4cGlyZXM9MTU1NjE0ODcxMiZTaWduYXR1cmU9Umg1TWpROUZpVTg2QS UyQjNIOHpQa0E4RmhOclklM0RXA3NwY0IKACNYocFcZiLE9lIRam1jY2x1czUxQGFvbC5jb21YBAAAAAA~ [4] http://link.quorumoutbox.com/f/a/RddObydwoWIl6YbYGsvaEQ~~/AACYXwA~/RgRepCZAP0RbaHR0cHM6Ly9 zY2hvbGFybHljb21tb25zLmxhdy5ub3J0aHdlc3Rlcm4uZWR1L2NnaS92aWV3Y29udGVudC5jZ2k_YXJ0aWNsZT0 2NTIwJmNvbnRleHQ9amNsY1cDc3BjQgoAI1ihwVxmIsT2UhFqbWNjbHVzNTFAYW9sLmNvbVgEAAAAAA~~ [5] http://link.quorumoutbox.com/f/a/cghIpkkEy_k9lw8_pg8wWA~~/AACYXwA~/RgRepCZAP0QzaHR0cHM6Ly9j YXNldGV4dC5jb20vY2FzZS91bml0ZWQtc3RhdGVzLXYtc2FsZXJuby02VwNzcGNCCgAjWKHBXGYixPZSEWptY2N sdXM1MUBhb2wuY29tWAQAAAAA [6] http://link.quorumoutbox.com/f/a/qFKw_u6rNJjpI3jAkZ7cvQ~~/AACYXwA~/RgRepCZAP0RGaHR0cHM6Ly9w YnR4LmNvbS9oYXJyaXMtY291bnR5LW5ldy1iYWlsLWJvbmQtcHJvY2VkdXJlcy1hcy1vZi0xLTE3LTE5L1cDc3BjQg oAI1ihwVxmIsT2UhFqbWNjbHVzNTFAYW9sLmNvbVgEAAAAAA~~ [7] http://link.quorumoutbox.com/f/a/6SIfXnmByVvjO8t1qcpO5w~~/AACYXwA~/RgRepCZAP0QlaHR0cDovL3d3d y5hbWVyaWNhbmJhaWxjb2FsaXRpb24ub3JnL1cDc3BjQgoAI1ihwVxmIsT2UhFqbWNjbHVzNTFAYW9sLmNvbV gEAAAAAA~~ [8] http://link.quorumoutbox.com/f/a/tsxZHsBSAtAENdSkktGEtQ~~/AACYXwA~/RgRepCZAP0QvaHR0cHM6Ly93 d3cuZmFjZWJvb2suY29tL0FtZXJpY2FuQmFpbENvYWxpdGlvbi9XA3NwY0IKACNYocFcZiLE9lIRam1jY2x1czUxQG FvbC5jb21YBAAAAAA~ [9] http://link.quorumoutbox.com/f/a/1YR_C0agpPkQxXJp_jOrDg~~/AACYXwA~/RgRepCZAP0QjaHR0cHM6Ly90 d2l0dGVyLmNvbS9hbWJhaWxjb2FsaXRpb25XA3NwY0IKACNYocFcZiLE9lIRam1jY2x1czUxQGFvbC5jb21YBAAA AAA~ Visit our Website

Texas: Thoughts On The Preventative Detention Constitutional Amendment, HJR 62

A proposed settlement in the landmark Harris County bail lawsuit would significantly change how the county treats poor defendants in misdemeanor cases by providing free social and transportation services and relaxing penalties for missed court dates. The draft deal includes a number of reforms aimed at ensuring poor defendants arrive for court hearings and are not unfairly pressured into guilty pleas. They would, among other changes: require Harris County to provide free child care at courthouses, develop a two-way communication system between courts and defendants, give cell phones to poor defendants and pay for public transit or ride share services for defendants without access to transportation to court. “I’m not aware of any county, or city the size of Houston… doing those type of innovative things,” said Mary McCord, a former federal prosecutor who filed an amicus brief in the case on behalf of the poor defendants. “Ultimately, the county is going to save so much money by not keeping these people in jail.” The proffered agreement would require the county to operate at least one night or weekend docket to provide a more convenient opportunity for defendants with family, work and education commitments. Courts would be barred from charging any fees to poor defendants, defined as those earning less than 200 percent of the federal poverty level, which is about $25,000 for someone with no dependents. The proposal also would reduce penalties for missed court dates. A defendant could not be deemed to have failed to appear if he arrived in court on the day assigned, even if he was hours late. Defendants would be allowed to reschedule court appearances for any reason at least two times without negative consequences. Judges only could issue bench warrants 30 days after a missed a court appearance, so long as the court already has attempted to contact the defendant with a rescheduled hearing date. In addition, judges would be required to permit defendants to skip hearings where their presence is unnecessary, such as routine meetings between prosecutors, defense attorneys and judges that do not involve testimony or fact-finding. At the heart of the 23-page proposed settlement, a copy of which was obtained by the Houston Chronicle, is the codification of a new bail schedule unveiled by the slate of newly elected of criminal judges in January, under which about 85 percent of people arrested on misdemeanors automatically qualify for release on no-cash bonds. “Our current goal now is to become the model misdemeanor court system in America,” said Harris County Criminal Court at Law Judge Darrell Jordan, a bail reform advocate and the only Democrat on the misdemeanor bench when the case began. “I think the proposals in the settlement, as far as the wraparound services for misdemeanor defendants, is a great step in that direction.” Among the more unusual provisions of the proposed settlement is the creation of a bail education program “to protect against renewed efforts to mislead or misinform the public about the history of constitutional violations, the harms of pretrial detention, empirical evidence concerning secured money bail and the functioning of the misdemeanor bail system in Harris County.” The county would be required to develop a curriculum for use in public schools and install exhibits on bail reform in the lobby of the criminal courthouse, in the office of County Court at Law Judges and the Harris County Jail. The proposal also would require courts to schedule hearings at least three days after misdemeanor defendants are released from jail, to ensure they have an opportunity to “address the disruption in their lives caused by the arrest,” according to the draft. Officials envision paying for those programs, in part, with the money the county saves by diverting defendants from the Harris County Jail, which currently has a daily cost of $80 per inmate. Investing that money into such pretrial services would lead to better outcomes, said Precinct 1 Commissioner Rodney Ellis, who has sided with the plaintiffs since his election. “Advancing meaningful change to our broken bail system to ensure all people are treated equally and fairly under the law requires holistic reform,” Ellis said. “That means ensuring due process and equal protection in our courtrooms, as well as the breaking down the barriers that prevent access to justice in our communities.” Any proposed settlement would need to be approved by Harris County Commissioners Court, the plaintiffs’ attorneys and U.S. District Court Judge Lee H. Rosenthal, who is overseeing the lawsuit. Rosenthal ruled in April 2017 that the county’s cash bail system was unconstitutional because it kept some indigent defendants in jail solely because they were unable to afford bail. A group of poor misdemeanor defendants brought the class action in 2016. A Chronicle review of more than 100 Harris County misdemeanor cases last year revealed a pretrial system that provides little support or supervision for poor defendants, who are most at risk of failing to appear in court. To date, Harris County has spent $9.2 million defending the case, First Assistant County Attorney Robert Soard said. Since the 15 Republican misdemeanor judges named as defendants in the case were swept out of office last November, attorneys for the county, the hearing officers and poor defendants have worked together on the settlement. Commissioners Court met briefly in executive session to discuss the settlement at its regular meeting Tuesday, but took no action. Soard declined to discuss the negotiations, but said the county hopes to settle as quickly as possible. Allan Van Fleet, an attorney representing the misdemeanor judges, predicted the parties would settle within 30 days. Harris County Judge Lina Hidalgo issued a statement late Friday stressing that the proposal is preliminary, and could change. “We’re working well with the plaintiffs to reach an agreement that will provide a model for bail reform around the country while also being feasible for the county to implement,” she said. Precinct 2 Commissioner Adrian Garcia said he is eager to negotiate a settlement that balances the needs of defendants against those of victims and county taxpayers. He declined to speak to specific provisions in the proposed settlement, but said he has concerns that some may be too expensive or unrealistic. “I’ll just say there’s a number of things that immediately hit me like, ‘I’m not sure how we’re going to do that,’” Garcia said. Precinct 3 Commissioner Steve Radack and Precinct 4’s Jack Cagle panned the proposal, which they said is too broad. The pair of Republicans said it should instead focus on implementing bail rules that ignore a defendant’s ability to pay. “If my learned colleagues are going to strive for free Uber rides for the accused, I’d strongly advocate we provide the same to victims,” Cagle said. The draft agreement does not detail the cost of the proposed pretrial programs, though it includes a section dedicated to how savings from holding fewer defendants in jail would be shifted to them. The county would be required to create a comprehensive system for calculating the savings generated from bail reform, and invest at least 50 percent of that sum into pretrial programs. Since misdemeanor judges began using the new bail rules on Feb. 16, the population at the Harris County Jail has decreased 218 inmates, to 7,971. That drop saves the county about $17,500 per day. Sheriff Ed Gonzalez credited bail reform, in part, for helping the county stop outsourcing the housing of inmates to Louisiana last year. The settlement proposal seeks to make court appearances less onerous for defendants. Kelvin Banks, director of the county’s pretrial services division, said the child care, cell phone and transportation programs would remove barriers that regularly cause defendants to miss court dates. He acknowledged Harris County residents may be wary to see tax dollars spent on people accused of crimes, though he said a pilot program last year that provided free public transit to defendants saved the county money. “It costs the county less in bus tickets than to investigate a failure to appear, with all the resources it takes,” Banks said. The deal also would set a case limit for public defenders and add attorneys to meet the office’s workload. Chief Public Defender Alex Bunin said since the county roughly doubled his budget in February, he has the necessary resources. “The settlement will not raise costs for our office at this point,” Bunin said. Rosenthal and the parties are due back in federal court for a status conference on Tuesday. zach.despart@chron.com www.twitter.com/zachdespart

As someone who works with crime victims, I’m concerned about the bail reforms being considered this legislative session. Because this is such a popular issue, we have plenty of case studies from other states to learn from. Many of the proposals under debate in Texas have already failed in states like Kentucky, New Mexico and New Jersey. After seeing crime and recidivism rates increase, those states are looking to roll back reforms. Why would we repeat the same failed policies and expect a different outcome?  Bail policies must balance three things equally: public safety, victim safety and defendant’s rights. No consideration should trump another, otherwise justice isn’t served. The current debate focuses on the rights of the defendant to the detriment of victim and public safety. A U.S. 5th Circuit Court of Appeals ruling strikes the appropriate balance by requiring a bail hearing within 48 hours, and consideration of victim and public safety and a defendant’s likelihood to reappear for hearings.

Dear John, Rich people can afford their bail and poor people can’t—the holy grail of bail slogans, jingles, catchphrases, watchwords, and mantras—is the heart of how criminal justice public policy is being designed these days. Even as scholarly research debunks the “stuck in jail” affordability argument on bail, that we simply hate something without clear or reasonable understanding of how it works is the kickstarter to carelessly reengineering the facts. The definition of going off the rails, according to the Cambridge Dictionary, is when a person starts behaving in a way that is not generally acceptable, especially dishonestly or illegally. We prefer the Collins English Dictionary instead: “If someone goes off the rails, they start to behave in a way that other people think is unacceptable or very strange, for example, they start taking drugs or breaking the law.” Dallas County Has Gone Off The Rails Enter criminal justice reformer Dallas District Attorney John Creuzot, who likes to say, “Justice is hard work, and justice is heart work.” Last week, DA Creuzot introduced new criminal justice reform policy in Dallas that has certainly raised a few eyebrow’s—including Texas Governor Greg Abbot. Under the new policy, no one who steals “personal items” is going to be prosecuted, meaning that businesses will now be required to provide such items for free. It’s going to be heart work, and candidly heart burn, for the business community in Dallas County who will be required to provide “personal items” to all people in Dallas not in excess of $750 per incident. A personal item could be a lot of things—from shaving razors, toothbrushes, steaks, toilet paper, etc. Of course, any person in Dallas can now just take what they want under the new threshold set by Creuzot. Only stuff that you take “for economic gain,” which incidentally is not defined, is omitted from this new policy. Of course, defendants will argue that the new big-screen was taken out of necessity and so was the new iPhone. After all, they needed to watch the weather report and make some phone calls. Let’s just do some basic math on this socialistic welfare transfer. The average American spends $423 a month on food and clothing, which works out to be $5,076 a year. Dallas County has a population of 2.618 million persons. If every person decided to steal what they “need” and not “for economic gain,” then that would have to only steal 7 times at $749 to get this done, although due to food spoilage it would probably take a whole lot more. Of course, this would cost retailers a few dollars. Let’s assume that roughly only 5% of people will take advantage of this new loophole. That’s around 100,000 persons. That would cost retailers $507.6 million annually in lost merchandise. Obviously, it would be over $10 billion if all Dallas residents just took what they needed. But, it doesn’t stop there—trespassing is no longer a problem as long as it does not involve a “residence or physical intrusion into property.” Which means homeless people on drugs can wander around and go wherever they want and stay there. This will include places like malls, shopping centers, bars and restaurants, libraries, etc. On bail reform, DA Creuzot is just going to let ‘em all out. The Creuzot policy contains a presumption of release in all misdemeanors, regardless of whether domestic violence is involved. Same rule on felonies apply as long as your last felony was more than five years ago: “There shall be a presumption of release without pre-trial conditions for all people charged with a state jail felony who have no criminal convictions within the last five years.” Having an actual bail set requires clear and convincing evidence, which is rarely going to happen—and by design. So, basically everyone is out unless it is a capitol offense. The policy also says a prosecutor cannot seek a monetary bail that a defendant is unable to pay—in other words, everyone is getting out whether they cough up a single penny or pay a million dollars. The policy in fact says that a bond someone is not able to post will serve to keep someone in jail pending trial. This means everyone pending disposition of criminal charges, including all but capitol offenses, will be getting out of jail in Dallas County, Texas. Harris County Has Gone Off The Rails Just when you think things cannot get any weirder, the Houston Chronicle reported over the weekend that the Harris County misdemeanor judges are going to settle their long-standing bail lawsuit by providing free cell phones, free Uber, and free child care to all those charged with a criminal case who claim they are indigent. When they say crime doesn’t pay, that was a generation ago. Forget about that present day. Now crime literally does pay--it pays your transportation bill, it pays your cell phone, and it pays for your daycare. Why wouldn’t you take up a new criminal career? It’s quick, doesn’t take eight hours much less forty, you don’t need any student loans, and will keep you in business for 9-12 months while you are “innocent.” Bordering on farcical, we of course could not let this get past us. We had to get all of the details of this plan, which also includes running a misinformation campaign against those who oppose the bail reform efforts in Houston, Texas. Interestingly, the plan also includes developing a school curriculum on bail reform and designing “exhibits on bail reform in the lobby of the criminal courthouse, in the office of the County Court at Law Judges and the Harris County Jail.” We have to assume that Federal Judge Lee Rosenthal is statue worthy, although we regret that Augustus St. Gaudens is long gone since he is the only human being past or present worthy of undertaking such a project. So, we issued an open records request to get the details. We will report back the findings. In the request, we note that there are many unresolved issues, such as: Whether defendants will be forced to take mass transit instead of ride sharing services in order to fight climate change; Whether defendants will be allowed to take Uber Black or will have to use Uber pool; Whether Uber and Lyft drivers will be informed they are transporting criminal defendants or not and if they will also receive a copy of their pretrial risk assessment and score; Whether or not electric scooters and/or electric bicycles were considered and/or approved as a transportation mechanism in order to significantly reduce carbon emissions thereby stopping the planet’s ultimate and certain doom. Whether defendants will be able to port their cell phone numbers and be offered a selection of phones including I-phone and android; Why Taxicab drivers have been excluded as drivers in this new criminal social transportation justice movement. Be warned – free Uber, free phones, and free child care are not for everybody. It is only for those who completely disrespect society and continue to commit crimes. The more the crimes, the more cell phones, the more free Uber rides, and the more free child care. The rest of you…you’re on your own. It is fair to say that Dallas County and Harris County have simply gone off the rails with this bail and criminal justice reform. The question will be, when will the public say enough is enough? Jeff Clayton, M.S., J.D. Executive Director American Bail Coalition More about the American Bail Coalition... The American Bail Coalition is the national trade association of commercial bail insurance underwriters whose members are responsible for underwriting criminal bail bonds throughout the United States of America. The Coalition’s primary focus is to protect the constitutional right to bail by working with local and state policymakers to bring best practices to the system of release from custody pending trial. Jeff Clayton, Esq. is the Executive Director/Policy Director and can be reached at jclayton@americanbail.org or (877) 958-6628.

Governor Greg Abbott's endorsement of bail reform last year appeared to give the issue fresh life. But Abbott has now backed a bail-reform bill that eschews best practices and instead puts his office at the center of future decisions about pretrial reform. The Houston Chronicle editorial board rightly opined that the move puts legislative reform efforts at extreme risk, but it's hardly just the governor. There's a swirl of backroom drama surrounding this topic with an array of competing interests and agendas, and no obvious way to navigate the morass. Here's an overview of interests framing the topic: Federal court injunctions have mainly focused on representation of indigent defendants at bail hearings and eliminating discrimination based on ability to pay. Counties oppose requiring appointment of counsel for indigent defendants earlier in the process, considering this an "unfunded mandate." The Texas Judicial Council proposed using risk assessments to reduce incarceration of low-risk offenders (the Office of Court Administration developed an instrument based on work by the Laura and John Arnold Foundation to create a version counties could use for free). The bail industry opposes use of risk assessments with the heat of a thousand suns and is investing big money in lobbying and communications strategies to undermine bail reform efforts. After the death of a state trooper named Damon Allen, Governor Abbott weighed in to say his biggest priority was expanding the scope of preventive detention. The criminal defense bar adamantly opposes granting any additional preventive detention powers to the government. Criminal-justice reformers are split. In theory, all support reduced pretrial incarceration in county jails, but some oppose the use of risk-assessment algorithms which are viewed as racially biased. The Governor's proposal criticized by the Chronicle focuses primarily on preventive detention and expanding the power of his office over local court processes. The federal litigation driving the issue is more focused on access to counsel at bail hearings and reducing unjustified pretrial detention. Meanwhile, the Whitmire/Murr legislation ignores the access to counsel issue and promotes risk assessments and preventive detention, trying to merge the Governor's priorities with the judiciary's. Never say never, but it's hard to see the path toward threading that needle. And if it were to occur, the resulting bill likely wouldn't resolve the issues at stake in the federal litigation, and we'd be back doing this again in 2021. After the federal litigation has finished, it will be much more clear what needs to be in the bill to ensure counties meet baseline constitutional standards, since they will have been outlined by the 5th Circuit. In the end, the will may not yet exist to solve the problem through the political process. Certainly there is no consensus regarding what reform should look like and who should control it.  But much could change between now and 2021. If the Lege fails to act this year, odds are federal litigation presently pending in the 5th Circuit will reach its denouement between now and the next time they meet. That will create a new baseline for pretrial-detention rules and give the Legislature much more guidance, and possibly different priorities. So look for the Texas Lege to revisit bail reform in 2021, whether or not a bill passes this time.

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