Bail Reform

The Issue

The axiom that a person is considered innocent of a criminal act until he or she has been proven guilty is a bedrock principle of the American criminal justice system. In recent decades, however, this has not been well-practiced in pretrial situations, as an increasing number of criminal defendants are being detained in jail before and during their trial for various reasons—including an inability to post monetary bond. Further, dangerous offenders are being released on low bail due to a judge not knowing an offender’s adequate risk profile, potentially resulting in disastrous consequences.

In Texas, almost 33 percent of the jail population was comprised of pretrial detainees in 1994—better than the national average. By 2016, that proportion had grown to almost 74 percent. Several recent studies have demonstrated that rural jurisdictions in particular have been responsible for an outsized share of this growth.

There is a slew of harmful consequences related to detaining so many defendants prior to trial who likely do not need to be detained—for both defendants and society. For the former, those who are detained before trial are statistically more likely to commit future crimes and have fewer employment prospects (not to mention compromised family ties during extended jail stays). Taxpayers are also affected, in that they must shoulder the burden of paying over $60 per day to house pretrial detainees who, in most situations, can be released on recognizance or with some form of supervision (cheaper than pretrial incarceration). In 2016, jails in Texas housed over 41,000 pretrial detainees— presenting a total annual cost to counties of nearly $900 million.

The causes that likely account for such growth in pretrial populations are myriad. Perhaps the key factor is that local criminal justice systems have not adopted a presumption of pretrial release. Instead, the accused are often subject to bail amounts that preclude them from being released or to conditions of release unrelated to protecting public safety and preventing flight.

Tying a defendant’s release to the size of their wallet instead of their risk to public safety presents two untenable situations. First, dangerous individuals of financial means might be able to pay their bond and secure their release, which has had tragic consequences. Conversely, many defendants present little ongoing risk to public safety but cannot afford even low bond amounts and must remain in detention. Properly basing a defendant’s release on potential for re-offense by using validated risk-assessment tools
has been shown to reduce the likelihood of these situations occurring.

Recommendations

  • Promptly administer risk assessment upon intake and ensure that judges have access to risk assessment determinations and criminal history records.
  • Establish a presumption of recognizance release for low-risk defendants accused of non-violent offenses.
  • Expand police diversion programs, such as Law Enforcement-Assisted Diversion (LEAD).
  • Revise state bail laws, and include the preventative detention option.

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