Proposal to Give Texas Judges Discretion to Deny Bail to High-Risk Violent Offenders

The Texas Judicial Council, the policy-making body for the state judiciary, is asking the Legislature to give judges more leeway to deny bail to defendants deemed dangerous or a high risk of flight.

The current Code of Criminal Procedure says that “all prisoners shall be bailable unless for capital offenses when the proof is evident” (art. 1.07), and the state constitution also protects the right to bail, with limited exceptions.

Those provisions mean that judges can’t prevent apparently dangerous individuals from being released, as long as the defendant has enough money to make bail, according to David Slayton, Executive Director of the Texas Judicial Council.

The Council’s Criminal Justice Committee released a report this month saying, “Most judges or magistrates in Texas make pretrial bail decision without adequate information to determine the defendant’s risk of flight or risk to the public safety.”

“The lack of information results in decisions by magistrates that may result in the release of individuals who pose a great deal of risk to the community.”

At a meeting of the Judicial Council September 24, held over Zoom, Slayton explained to fellow members that the council’s criminal justice committee has recommended adopting a standard similar to the federal standard for denial of bail, which requires “clear and convincing evidence of a high risk to the community for reoffense or high risk of flight.”

In order for judges to make decisions about whether a defendant is dangerous, they would need more information. The criminal justice report recommends that the Legislature “should require defendants arrested for jailable misdemeanors and felonies to be assessed using a validated pretrial risk assessment prior to appearance before a magistrate.”

Bills introduced in the last legislative session, in 2019, would have accomplished most of the recommendations of the Texas Judicial Council.

One bill, HB 1323 by Rep. Andrew Murr, passed the House Criminal Justice Committee but was never set on the House general calendar for a vote in the full chamber. Muir’s bill would have given judges discretion to deny bail in cases of kidnapping, human trafficking, indecency with a child, sexual assault, aggravated robbery, burglary, and certain other offenses.

The bill included certain due process protections, including entitling a defendant who was denied bail a bail review hearing within 24 hours.

Another bill, HB 2020 by Rep. Kyle Kacal, would have led to the creation of a pretrial risk assessment tool to be used by judges when setting bail, as recommended by the Judicial Council. The bill passed the House but never got a reading in the Senate.

At the September 24 meeting, Rep. Reginald Smith (R-Sherman) raised the point that in the federal system such pretrial checks are “fairly work intensive.” Though they ensure that judges have information before the bail hearing, they also require adequate staffing to complete.

Slayton responded, “The number one recommendation of this committee is that every defendant be screened with an elevated pre-trial risk assessment. It’s a little bit different than the federal system. The federal system uses an interview-based risk assessment where they actually interview every defendant.”

“And this is a non-interview based risk assessment that we’ve recommended, which would be less work intensive because we understand that with 254 counties it’s not going to be possible to staff up the way the federal courts do that.”

The process could be partially automated, Slayton said. Still, the proposed law would impose some additional burden on local jurisdictions. “But the goal is to make it as little work-intensive as possible for local jurisdictions because we realize the capacity is not there,” he added.

The pretrial assessment tool, while less robust than the federal equivalent, would still give Texas judges good information about the “risk of flight and the risk of future criminal activity.”

In order to enact changes to the Texas bail system, the Legislature and the voters would need to amend the state constitution, which, like the Criminal Code, says that “all prisoners shall be bailable,” except defendants in murder cases, defendants who committed a crime while on bail for a prior felony, and in certain other circumstances.

The Judicial Council’s Criminal Justice Committee report recommends constitutional amendments to ensure that dangerous defendants “may be held in jail without bail pending trial.”

Originally published at https://www.honestaustin.com on September 24, 2020.