President's Message: Número Nueve: The Good and the Ugly - By John A. Convery

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Thursday, March 30th, 2017

You all might remember my President’s Message from last November, in which I shared information with you about our legislative efforts related to pretrial release. Since then, both Senator John Whitmire and Representative Andrew Murr filed identical bills, and it is expected that they will be heard very soon in both chambers. In the past four months, as negotiations have taken place, the bill has morphed, sometimes favorably and sometimes not. TCDLA has had a seat at the table during these negotiations, and as a result, we have been able to insert favorable language and compromise positions on sections about which we do not agree.

Given the widespread implications of these bills, I thought it fitting to write about it again now to make sure our members know about the good and the ugly. These bills contain two major and distinct concepts, the first of which represents good, positive reform that will directly affect our clients and the section of which is just ugly, as it allows for defendants to be held without bond for the duration of their case in charges other than capital murder, to include any felony or jailable misdemeanor.

Let’s start with the good in these bills. It is encouraging that the Texas Legislature is taking a hard look at the reasons our county jails are overcrowded and how the process could better ensure that low-level, nonviolent offenders would be released early in the process. We know that more than forty thousand defendants are currently held in county jails, resulting in an annual $1 billion price tag to the counties. The cost to our clients who find themselves in these situations is dire—defendants held in jail are more likely to plead guilty to get out of jail, and they risk losing their jobs, homes, and families.

First, while asking for increased state funding and recognizing that all existing forms of bond and bail should remain in effect, the legislation calls for an amendment to the Texas Constitution that would create a presumption that all persons charged with a crime in Texas are entitled to pretrial release through personal bond. The bills seeks to require that all Texas counties adopt and implement a validated risk-assessment tool that would be given to all defendants arrested for jailable misdemeanors and felonies, prior to magistration. The results of such an assessment would be used to place defendants along a risk scale and as a factor in determining appropriate bond conditions and supervision.

This risk assessment is important. The ideal risk assessment—which would objectively provide courts with information necessary to determine bond and to serve the interests of the criminal justice system—is one in which there is no need for an interview and the score is based on prior convictions or failures to appear. The Office of Court Administration, should the bill pass, would establish a model risk assessment for counties to use—such as the assessment made by the John and Laura Arnold Foundation in Houston. The assessment will focus on the only two criteria that courts should evaluate: what is the risk of the defendant failing to appear and what is the likelihood that the defendant will be a danger to the community. Because of these specific topics, the Arnold Foundation assessment considers a defendant’s background related to prior failures to appear, if any, and prior convictions (not just arrests) for violent crimes.

Both of the bills also include a provision that no indigent defendant can be held on the basis that they cannot pay the personal bond fee, an issue that has caused thousands around the state to stay in jail after they have been granted a personal bond.

The position of the bill authors is that the system faces two problems—one, that low-level nonviolent people are being held too long in the county jails and two, that some individuals who have the financial ability to post nearly any amount of money are being released when they really should stay in jail. Because this is an inherent philosophy, both instances are being addressed in this legislation. Therefore, Senator Whitmire and Representative Murr are also proposing to amend the Texas Constitution to provide that defendants posing a high risk of flight and/or a danger to community safety may be held in jail without bail pending trial after certain findings are made and a detention hearing held. While the expressed goal regarding this provision is to prevent flight or a community safety threat by those with affluent means, expanding the class of individuals who can be held without bond pretrial beyond those charged with capital murder is, understandably, concerning to us and other legislators.

This process—known as preventative detention—is enumerated as follows. A magistrate or a judge can find by clear and convincing evidence that bail or the conditions of pretrial release are insufficient to reasonably ensure the person’s appearance in court or the safety of the community or the victim on the alleged offense. Upon that finding, the decision to continue to hold a defendant without bond and therefore trigger a preventive detention hearing rests in the hands of the state. Should the state proceed, a detention hearing must be held no later than 10 days after the initial magistrate or judge’s denial of release. The state may not continue the case past those 10 days, but the defense can if we need more time to prepare.

At the detention hearing, defendants will have the ability to present witnesses and evidence related to the case. During the hearing, the Judge must consider a number of factors, including the weight of the evidence and the likelihood that the evidence would be admissible, as well as the history, mental condition, employment, past conduct, and character of the defendant. If the court makes a finding by clear and convincing evidence that setting bond would not reasonably ensure the defendant’s appearance in court or the safety of the community or the victim of the alleged offense, it can order that the defendant be held without bond. If such a finding is made, the Court must make written findings as to its justification for such a detainer.

The bills also enumerate a specific right to appeal such a finding to the Court of Criminal Appeals and would give this Court the responsibility of rule-making to accelerate this process. Given the breadth of topics the Courts can consider, including the weight of the evidence and its admissibility, it is imperative for the defense to be provided with discovery in advance of the hearing with enough time to prepare for the hearing.

After much review and analysis, the TCDLA Legislative team and leadership believe that some of the recommendations for reform to the pretrial release procedures are sensible, strategic, and good—and therefore, will have our endorsement and support. However, the expansion of preventive detention gives overly broad discretion to magistrates and judges to trigger the process in any case they choose.

TCDLA supports the provisions in the bill that will result in the pretrial release for a class of defendants—those who have nonviolent charges. However, TCDLA does not support the expansion of preventive detention, despite the scope of the detention hearing to which defendants would be entitled. TCDLA will continue to advocate for specific change and protections should this legislation pass over our objection.