With what seems like the regularity of a Swiss watch, Texas’ pretrial release system is making the news again—just not in a good way.
A recent story published by FOX 26 Houston tells of 20-year old Caitlynne Guajardo and her unborn child who, according to Pasadena police, were stabbed to death by her husband during a domestic dispute. The suspect, Alex Guajardo, had been arrested on assault and family violence charges just 18 hours prior but was released on a personal recognizance bond. (He had also been arrested two months prior on his second DWI and a failure to stop-and-give-aid charge, but again, was released on his own recognizance).
Meanwhile, Ken W. Good, a member of Professional Bondsmen of Texas’ board of directors, writes on this site’s pages about Harris County’s new byzantine bail system for misdemeanor offenses. Evoking Lewis Carroll’s classic, Good explains how Harris County has traveled “through the looking glass”—where “logic and reason” have been turned on their head—with the end result being more crime and more failures of criminal defendants to appear for their court date.
Some background is necessary. Last year, Harris County officials entered into a federal consent decree as part of a settlement in a class-action lawsuit in order to “create and enforce constitutional and transparent pretrial practices and systems that protect the due process rights and equal protection rights of misdemeanor arrestees.” The lawsuit was brought by a criminal defendant who claimed that the burden of the county’s system of apportioning secured bail fell disproportionately upon poor arrestees, violating both the Texas and federal constitution’s equal protection and due process clauses. In short, the district and appellate courts found largely in favor of the plaintiff and required implementation of new safeguards.
This settlement ostensibly erects those safeguards and concludes that (complicated) litigation.
When Good decries that the settlement has the effect of “simply releasing criminal defendants without accountability,” he hits close to the mark. Local Rule 9.4 provides that “all misdemeanor arrestees,” with a few exceptions, must be released on a personal bond or on non-financial conditions as soon as practicable after arrest. Those charged with an excluded offense may be detained for up to 48 hours pending an individualized hearing.
This provision is reminiscent of new bail policies recently passed in New York, which functionally eliminated cash bail and required pretrial release in almost all cases. A spate of well-publicized crime sprees followed that reform which proceeded along a frustratingly familiar course: arrest, release from jail, re-arrest, and so on. Like New York, Harris County’s new misdemeanor release practices all but ignore public safety and demonstrate the pratfalls of swinging between policy extremes—with prohibitively expensive bail on one hand and overly-permissive release on the other.
Good goes on to discuss how the new system appears to be having a negative effect on the number of pending cases in Harris County, as the court struggles to “hold to account people who do not appear as required.” Honest brokers should acknowledge that not all failures to appear are necessarily malicious, and to the settlement’s credit, various technologies known to improve court appearance, including automated text reminders, are being utilized. And while it’s not entirely true that “defendants can miss court with impunity”— the decree does create procedures to deal with nonappearance, including the issuance of arrest warrants—Good’s point about case backlogs is well received. To say nothing of their merits, the decree creates new layers of process that could have the effect of gumming up the smooth disposition of cases in the event of nonappearance (which require court dates to be rescheduled).
Any major overhaul of court procedure will inevitably face implementation hurdles, so a measure of grace is warranted. Nonetheless, Harris County ought to be on a short leash in which to prove their new system’s viability.
With all of that said, let us not pretend that the status quo surrounding Texas’ pretrial release system at large—whether in Houston or Llano—is anything in which to aspire. Bond schedules have had the effect of delivering one-size-fits-everyone justice that never gets around to asking relevant questions about this or that defendant: Is a secured bond necessary from one case to another to ensure court appearance? (Not always.) Or, is there good reason to assume that higher bond amounts are a reliable proxy for risk? (They aren’t).
One result of such misplaced evenhandedness is in the state’s pretrial jail population, which has skyrocketed since 1994.
In terms of public safety, financial-based systems such as Texas’ often suffer from the problem of misclassification—in other words, the tendency to detain lower-risk individuals who can be safely released but cannot pay, or releasing higher-risk defendants who ought to be detained prior to trial but manage to pay their bond.
Applied to Alex Guajardo’s case, current law in Texas would have demanded that he have the opportunity to post bond after each of his arrests, despite his (seemingly) escalating risk to public safety. A judge or magistrate may have attempted to set a higher bond amount, but if Guajardo could pay it? He’d be out. This has happened before—with tragic results. Meanwhile, poorer defendants who don’t present such risks can have trouble scraping together even $500, and therefore, usually remain in jail. Both outcomes are unacceptable and avoidable.
How? By shifting from a financial-based pretrial release system to one more informed by an individual’s risk, which would better balance the dual necessities of promoting public safety and ensuring that defendants are not being unnecessarily detained based on the size of their wallet or the shake of a judge’s Magic-8 ball.
Sound legislation, such as that proposed in the last session by Rep. Andrew Murr and Sen. John Whitmire, already exists to make such a change. It would allow judges and magistrates statewide to gain a more holistic picture of each defendant’s relevant criminal history with a validated risk-assessment tool to supplement their release decisions (only 6 counties currently use one). Judges themselves are clamoring for this tool. Such risk assessments do a better job of avoiding misclassifications than the status quo, and coupled with both preventative detention and presumptive-release provisions, would help to ensure a safer and more equitable pretrial system.
Hard reality dictates that no bail system will be perfect, but risk-informed ones are a far more serious endeavor in terms of realizing the public’s shared desires. No one wants dangerous individuals roaming the streets after having been arrested, but no one wants poverty to become an impediment on someone’s liberty, either. Harris County has recognized that change is needed, but only time will tell what the looking glass shows there. The rest of Texas must now step up to the plate.