This commentary was originally featured in the Austin American-Statesman on February 18, 2018.
Criminal justice reform is a prominent issue in the public square, capturing the interest of both ends of the ideological spectrum, as well as celebrities, think tanks and even the White House. Propelling this issue forward, both nationally and in the Lone Star State, is a recognition that change is needed.
Especially when it comes to jails.
One of the primary functions of county jails is for pretrial incarceration. Right now, a significant number of county jail inmates are pretrial detainees, which means these defendants are behind bars despite not having been convicted of a crime.
There are good reasons for this. Defendants can pose a high risk to the community or be flight risks who may not show up to their trials. In both cases, bail is often used to reduce the risk of a defendant committing another crime while awaiting trial and of not showing up for trial.
In some cases, bail may be set high enough that the defendant cannot afford to post bail, which almost eliminates the risk. In most cases, though, defendants do (and should be able to) make bail. Even when they do, though, bail sets up a system of accountability that helps reduce the risk of a new crime or flight.
The public safety concerns relating to pretrial incarceration are important. But so are the effects of incarceration on those who have been arrested but not convicted.
Research shows that unnecessarily keeping otherwise low-risk people in jail before trial increases the odds that they’ll break the law later. In fact, according to Marc Levin, one of the nation’s preeminent criminal justice scholars, “low-risk defendants have greater likelihood of committing new crimes than similarly situated defendants held no more than 24 hours, with the percent increase ranging from 17 percent for those held two to three days to more than 40 percent for those held 15 to 30 days.”
One obvious explanation is exposure. Serving more time in jail disrupts the stabilizing forces in a person’s life, such as marriage, employment and housing, and replaces them with friendships forged in unsavory places. That can easily lead a person down a path toward more and worse crime.
These issues signal the need for reform. Fortunately, there’s a solid roadmap already out there.
The Texas Public Policy Foundation’s “Legislator’s Guide to the Issues” recommends using evidence-based, risk assessment tools to help reduce the number of people unnecessarily incarcerated. These tools are a bit like getting “a prompt diagnosis by a doctor and (judges) making an informed decision about whether someone should be released prior to trial, and if so what financial and other conditions are necessary.”
Armed with these tools, courts can promptly assess pretrial defendants to determine their risk level and mental health status, and use that information to better determine who should be behind bars.
Risk assessment tools should be used in conjunction with bail to ensure the best outcomes for both the safety of the public and the liberty of the accused. Of course, there are some instances where pretrial defendants should not be released at all. The Texas Constitution guarantees bail for all but the most heinous of crimes, allowing high-risk defendants back into the community so long as they have the necessary means. Hence, bail reform at a statewide level should include an amendment that allows judges to deny bail for those deemed too dangerous to be released.
There are other ways to improve our pretrial system. One is to keep those who committed minor crimes from becoming a defendant in the first place through police diversion. Research shows that empowering police to divert certain individuals to appropriate programs without bringing them to jail can improve public safety while reducing costs. We can also speed up the provision of counsel for defendants who cannot afford to pay for legal representation.
With public interest mounting in criminal justice reform, the time has come to look at ways to improve pretrial incarceration in Texas. Making the right changes has the potential to be a big win, from both a public safety and a liberty perspective.