Bail Reform Primer

Bail Reform in Texas:

Decreasing Costs, Improving Public Safety, and Ensuring Fairness

Bail is supposed to serve two purposes: ensuring a person will show up for court, and protecting the public from dangerous people. Unfortunately, Texas’s money-based bail system often does neither.

Under the current system, too many low-flight risk, low-level defendants are kept in jail before trial—without having been convicted of a crime—simply because they cannot afford bail. At the same time, people at a higher risk for flight who pose a greater danger to the community are released before trial if they have money for bail.

Texas jails too many low-risk, low-level defendants, a practice that is both unfair and unsafe.

  • Low-risk defendants who are unlikely to commit a new crime or fail to appear in court make up the majority of people in most jails. [1]
  • Evidence shows that detaining low-risk people actually increases the likelihood that they will be arrested again in the future.[2]
  • Innocent people in jail who can’t afford bail will take plea deals just to be released, leaving them with permanent records that make future employment and housing more difficult to find. This is most common when people face job loss, eviction, or have no one to take care of their children.
  • Texas has over 63,000 people in county jails. Two-thirds of them are being held before trial, sometimes for months.[iii] They are overwhelmingly poor, and are disproportionately African Americans and Latinos.

Texas jails cost taxpayers too much money.

  • It costs an average of $60.12 per day to house a person in county jail. At this rate, Texas counties spend well over $2 million dollars per day housing defendants prior to trial.[iv]
  • With effective risk-based bail reform, Texas counties can expect to save over $29 million per year.

Our Recommendations:

Counties should move from a money-based bail system to a risk-based system. The House Committee on County Affairs,[v] House Committee on Criminal Jurisprudence,[vi] Senate Committee on Criminal Justice,[vii] and the Texas Judicial Council[viii] have recommended the use of a pretrial risk assessment to aid in the release decision-making process. Validated risk assessment tools help judges make better release decisions, allowing the release of more low-level, low-risk defendants.

The Texas Fair Defense Project (TFDP) also proposes a presumption that all defendants be released on personal bond without any additional conditions unless a judge makes specific findings that the defendant is a flight risk or a danger to the community. By implementing these changes, counties will save money and increase public safety without discriminating against low-income Texans.

A Primer on Pretrial Risk Assessments

Pretrial risk assessments can improve judicial decision-making, helping judges ensure that high-risk people are detained and low-risk people are released before trial. This primer explains the basics of pretrial risk assessments and things to consider before using them.

What is a Pretrial Risk Assessment?

Pretrial risk assessments use data to determine which factors are most highly correlated with failure during the pretrial period. Pretrial failure means missing a court date or getting arrested for a new offense before trial.

Pretrial risk assessments consider individual factors for a person who is arrested—such as a person’s criminal history, previously missed court dates, residency, and age— as well as data from everyone else who has been arrested over time with similar characteristics. This information can predict the likelihood of pretrial success or failure, which helps courts determine who should be released or detained prior to their court date based on flight or safety risks.

Where are Risk Assessments Used?

Risk assessments are already used in other areas of the criminal justice system, including probation, parole, and prison supervision. Each of these systems has a different tool because various factors affect people’s performance in each area. Some Texas counties already use validated pretrial risk assessments. For example, Travis County uses a locally validated pretrial risk assessment. Harris County is transitioning to using a validated, highly streamlined pretrial risk assessment tool created by the Laura and John Arnold Foundation.

Risk assessments are also used in many areas that are unrelated to the criminal justice system. Life insurance companies, for example, use risk assessments to determine whether to cover someone, the amount of coverage a person is eligible for, and how much their premium will be. The process of validating a risk assessment for insurance companies is similar to the one used in the criminal justice system. They look at a large amount of data about the characteristics of people seeking insurance and predict their likely health outcomes based on the performance of people with similar characteristics.

What Risk Assessments Can and Can’t Do

Pretrial risk assessments predict the likelihood of pretrial success or failure for one person based on the experiences of similar people over time. They cannot guarantee an outcome. They provide additional information to judges, but they do not remove a judge’s discretion to detain or release someone based on professional judgment. Pretrial risk assessments exist to assist and supplement judges’ decision-making, not to replace it.

Additional Considerations

Timing

Pretrial risk assessment tools should be applied to new arrestees quickly so that magistrates and judges can make informed bail decisions as soon as possible. Some pretrial risk assessments can be virtually automated because they rely on information that is already tracked by court and jail systems. Other pretrial risk assessments require an interview of the defendant because they include factors like employment and housing information. Interview-based risk assessments take longer and cost more to administer and may delay release decisions, depending on staffing.

Bias

Risk assessments should be validated to ensure that the tool is equally predictive for different races and genders. A validated risk assessment can be designed not to introduce new disparities into the criminal court system. Risk assessments cannot eliminate discrimination that may already exist elsewhere in the system.

Education

Most magistrates and judges in Texas have not been trained in pretrial risk assessments and how to use them. Training can help magistrates and judges use the information from pretrial risk assessments as effectively as possible. This is essential for a successful transition to a risk-based pretrial system.

Privacy

The formula used in a risk assessment tool should be publicly available information. Any information gathered for a risk assessment that is not public record should remain confidential and be neither released publicly nor provided to the prosecution in the case.

County Savings from Bail Reform

The Texas Fair Defense Project takes a conservative approach to projected savings, using marginal costs rather than average cost.[ix] Marginal costs of detention per inmate differ from county to county and based on the number of inmates being considered. TFDP’s analysis considers only savings that would actually be realized following a sustained reduction of the pretrial population.

More than 10,000 jailed Texans could be safely released with pretrial reform.

Across the country, about 60 percent of people detained before trial are considered low-risk.[x] This means that they pose little threat to public safety and are not likely to attempt to flee before trial. Jurisdictions that release low-risk defendants can still maintain a very high rate of court appearances and low rates of re-arrest before trial for released defendants.[xi] Other jurisdictions that use a risk-based system, like Kentucky, find that most low-risk people released before trial need nothing more than a simple court date reminder to ensure a high rate of court appearance and a low re-arrest rate.[xii]

Reducing pretrial populations can be and has been successfully achieved without posing a threat to public safety. In fact, a 2011 study published in the Texas Law Review found that 25% of jailed defendants could be released pretrial without jeopardizing public safety.[xiii] A 25% reduction in pretrial population would represent 10,075 fewer Texans in jail at any given time.[xiv] When Mecklenburg County, NC (Charlotte) implemented a risk-based pretrial system in 2014, their entire jail population declined by over 40% in just two years without any increase in crime.[xv]

Counties can save over $29,000,000 per year through pretrial reform.

The combined anticipated savings for only the 12 largest counties in Texas, were they to experience a 25% reduction in jail population, is $29,111,285. Other counties can also expect significant savings.

For more information, including technical details, please contact:

Rebecca Bernhardt                                                     Nate Fennell

Executive Director                                                      Policy Analyst

Email: rbernhardt@fairdefense.org                           Email: nfennell@fairdefense.org

Phone: 512-650-6501                                                 Phone: 512-766-6568

 

[1] Natalie Ortiz, Ph.D., “County Jails at the Crossroads,” National Association of Counties, NACo Why Counties Matter Paper Series, Issue 2, 2015, pp. 5-6.

[2] Christopher T. Lowenkamp, Marie VanNostrand, and Alexander Holsinger, “The Hidden Costs of Pretrial Detention,” http://www.arnoldfoundation.org/wp-content/uploads/2014/02/LJAF_Report_hidden-costs_FNL.pdf.

[iii] Texas Commission on Jail Standards, Abbreviated Population Report, Jun. 1, 2016.

[iv] Average cost per day for Texas jails – August 2015-July 2016. Information provided by the Texas Commission on Jail Standards to the Texas Judicial Council on August 17, 2016.

[v] Interim Report to the 85th Legislature (January 2017),

[vi] Interim Report to the 85th Legislature (January 2017), 15.

[vii] Interim Report to the 85th Legislature (December 2016), 10.

[viii] “Criminal Justice Committee Report & Recommendations: Pretrial Decision-Making Practices.” Texas Judicial Council (October 2016), 8.

[ix] Many analysts take the average cost of jail per inmate and multiply that by the number of people who would be diverted from jail. That method overestimates potential savings because the average cost per inmate includes some costs that don’t change when you reduce the jail population, like the cost of paying off the bond used to finance the jail building. Marginal costs, on the other hand, considers only the true savings from removing a certain number of inmates from the jail, such as food, laundry, and if enough of a reduction is met, staff and utilities costs of closing down small portions of the jail. The difference is significant. Applying average cost, rather than marginal cost, to our projected inmate declines would yield annual savings of over $125 million in those counties.

[x] Supra note 1.

[xi] “Results from the First Six Months of the Public Safety Assessment – Court in Kentucky,” Laura and John Arnold Foundation July 2014. http://www.arnoldfoundation.org/wp-content/uploads/2014/02/PSA-Court-Kentucky-6-Month-Report.pdf.

[xii] Testimony of Tara Boh Blair before Texas House Committees on Criminal Jurisprudence and County Affairs on 09/21/2016. 06:22:00 – 06:34:00.

[xiii] Shima Baradaran and Frank L. McIntyre, “Predicting Violence,” Texas Law Review 90:497 (n.d.): 497–570.

[xiv] Texas Commission on Jail Standards, Abbreviated Population Report, June 1, 2016.

[xv] “Mecklenburg County Recognized as Model for Pretrial Reform.” Charlotte-Mecklenburg Official Website. http://charmeck.org/mecklenburg/county/news/Pages/Mecklenburg-County-Recognized-as-Model-for-Pretrial-Reform.aspx