President's Message: Numero Cinco - By John A. Convery

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Saturday, November 5th, 2016

Although the temperatures belie it now, fall is upon us. With it, we will see the end of an intense and unpredictable summer of politics and the start of the holiday season. A holiday season in an even-numbered year, means that a legislative session is right around the corner! The 85th Session of the Texas Legislature will start in January, and again, legislators will embark on the near-impossible task of addressing all critical legislative needs in a 140-day period—and the TCDLA Legislative team will work diligently to protect our clients and improve the quality of justice in Texas. The legislative team has been preparing initiatives on a number of issues designed to ensure that our clients are treated fairly, and among them is the subject of pretrial release.

For the first time in recent memory, the Texas Legislature seems poised and committed to seriously address the jail overcrowding crisis created by housing tens of thousands of individuals as they await trial. According to the Texas Judicial Council (hereinafter “TJC”), currently more than 41,000 defendants are sitting in Texas jails waiting for trial, and the annual cost to local government for housing inmates pretrial nears a shocking $1 billion.

TCDLA has long advocated for reform to bond and bail practices that have resulted in over-incarceration in general, as well as the unconscionable incarceration of the poor simply because they are unable to pay. We all know the stories of people who lose jobs and housing because they are unable to post bond even in minor, nonviolent cases. Cases like that of Sandra Bland, who committed suicide in jail after being unable to post a $500 bond on a non-violent charge, make national headlines. We have seen firsthand the devastating impact on our clients of being held in custody for even 24–48 hours. And we know clients held in custody are more likely to plead guilty to charges, more likely to serve sentences of incarceration, and more likely to reoffend after release. The negative consequences of pretrial incarceration—particularly in nonviolent offense—have reached crisis proportion, both in terms of costs to taxpayers and to society in general.

In 2015, the Texas Judicial Council created a Criminal Justice Committee that has, for more than a year, with the input of stakeholders, studied the problem, existing research and studies, and solutions adopted in jurisdictions across the country. After a thorough analysis, TJC made a number of findings and passed a series of resolutions embodying legislative recommendations for reform.

After much review and analysis, the TCDLA Legislative team and leadership believe that some of the recommendations for reform coming via the TJC resolutions are smart and strategic and will have our endorsement and support. Of course, as with most complicated legislative proposals, the devil is in the details, and your legislative team will carefully monitor and actively par­ticipate in the development of these specific provisions. There are, however, provisions in the TJC resolutions that we believe are complicated and potentially unwise.

TJC is advocating for several key provisions. First, while asking for increased state funding and recognizing that all existing forms of bond and bail should remain in effect, TJC is recommending 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. TJC 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.

One such validated risk assessment tool has been promulgated by the Laura and John Arnold Foundation in Houston Texas (www.pretrial.org/national-model-pretrial-risk-assessment/). This is a non-interview-based tool that utilizes objective information designed to assess if an individual is likely to present a risk of flight or of danger to the community. This particular assessment tool has some important features. It is structured so that impermissible factors—like racial bias—are not part of the bond-setting decision, and it ana­lyzes risk based on prior convictions, as opposed to arrests.

TJC is also proposing to amend the Texas Constitution to provide that defendants posing a high risk of flight and/or 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 of TJC regarding this provision is to prevent the flight or 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 leg­islators as well.

This set of recommendations will just be some of those considered by the Legislature. A number of other provisions have been talked about both outside of and within TCDLA. Of course, TCDLA will be monitoring the hundreds of bills related to criminal justice that are filed every session. We will be both advocating for positive reforms and battling against efforts to dilute constitutional and statutory protections afforded our clients to protect against wrongful convictions and fundamental injustice.