Texas Counties Slowly Move Toward More Personal Bond Pretrial Releases

by Matt Clarke

In September 2012, about half of the 67,000 jail prisoners in Texas were detained awaiting trial. In 2010, incarcerating pretrial detainees cost taxpayers in the United States about $9 billion. To help reduce the drain on their budgets caused by the incarceration of pretrial detainees and reducing jail overcrowding – often under court order – some Texas counties are instituting a system of pretrial services which evaluates a defendant's suitability for release on a personal bond, with or without ongoing direct supervision.

Travis County is leading the pack in developing pretrial services. According to Dr. Geraldine Nagy, director of the county's adult probation and pretrial services department, they are working hard to make pretrial detention the exception, not the rule.

Travis County spends $105.61 per jail prisoner per day. On September 1, 2012, there were 1,292 pretrial detainees in the Travis County Jail. They constituted 56% of the jail's population. That number of prisoners costs the taxpayers $136,448 each day or about $50 million a year. The county's motivation to reduce the number of pretrial detainees is clear.

But Travis County doesn't want to save money if it means turning dangerous criminals loose on the streets of Austin. To help ensure that the right prisoners are released--those unlikely to abscond or commit additional crimes while awaiting trial--Nagy's pretrial staff screened over 40,000 pretrial detainees in 2011. Of the 40,000 screened, about 32,000 were eligible for a full pretrial investigation which includes a background check and checking out references, employment status and family support. It also includes conducting a locally-validated research-based risk assessment, which is considered a "best practice" nationally.

In Texas, only Travis and Harris Counties are using a validated risk assessment tool. That is a bit surprising because, according to Nagy, the tool used by Travis County has been highly successful at predicting which defendants will commit additional crimes or abscond.

To create the Travis County risk assessment tool, Nagy's staff tracked the experiences and outcomes of over 1,000 local defendants for 2.5 years. They sent this data to Ed Latessa, director of the Division of Criminal Justice at the University of Cincinnati, who compiled the data and created a seven-question weighted-answer survey from it. The survey effectively ranks defendants by their risk of rearrest or absconding. Nagy's staff uses that information to help decide who to recommend for a personal bond.

"You get a score, and based on that score, you're classified into one of three groups. And based on the data, each of those three groups has a level of recidivism," Nagy explained.

Low risk defendants with no complicating factors are recommended for release on personal bond without restrictions. Medium and high-risk defendants may also be eligible for personal bond release, but might require restrictions such as frequent drug testing, GPS monitoring, daily calls to a case manager or house arrest. 6,890 of the over 19,000 Travis County defendants released on personal bond in 2011 had some type of restriction.

A couple of factors traditionally thought to predict risk are not included in the risk assessment because the research showed that they had little relationship to actual risk. These include whether a defendant has access to money and what type of crime the defendant is charged with. With the exception of murder, rape, robbery and car theft, the type of offense does not predict future behavior. Instead, the survey asks how old the defendant is and whether the defendant has housing or a job, or has ever previously failed to appear in court, or has a substance abuse problem. The younger a person is when arrested, the greater the risk.

"[The risk assessment tool is] really consistent with all the research on decision making.... These tools do significantly better than just the person," said Nagy. "Making a pretrial decision without risk assessment is like playing golf in the fog."

One group is strongly opposed to the increasing role of pretrial services--bail bondsmen. In Texas, a person may post a cash bond or pay a bail bondsman a percentage of the bond (usually 10%) to be released. A cash bond is returned after all court appearances are met. A bail bondsman's fee is not. Bail bondsmen view the increased use of personal bonds as a threat to their livelihood. They also claim it endangers public safety and increases the likelihood of defendants, who know they won't have a bounty hunter chasing them, failing to appear in court.

Statistics put the lie to the bail bondsmen's arguments. According to Travis County records, personal bonds have a failure to appear (FTA) rate of around 13%, while bondsmen bails have an FTA rate of 17%. Furthermore, bail bondsmen have a poor record of paying the bonds they owe when a client absconds. Harris County bail bondsmen owe the county about $26 million in unpaid forfeitures while Dallas County bail bondsmen owe $35 million.

Except for the bail bondsmen, most people see the trend toward releasing low-risk defendants on personal bonds as a positive one.

"It allows people who are presumptively innocent to get out and not just to continue to work, to provide for themselves and their families, and to help their lawyers to prepare a case, but it also saves the county millions a year," said former Travis County District Judge Charles Baird.

The Texas Constitution guarantees every person the right to bail, the only exceptions being persons who have absconded and been rearrested and those charged with capital murder "where proof is evident." Likewise, the U.S. Constitution forbids "excessive bail." Therefore, one should applaud any effort at helping defendants exercise their right to be out of jail on bail.

Source: Austin Chronicle

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