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Comprehensive bail reform is complicated but possible in special legislative session

“We don’t want indigent people being in jail simply because of their economic status,” a local judge said, “but we also don’t want someone who’s committed a very violent offense to be out there to further commit crimes.”
Updated: Jun. 2, 2021 at 6:12 PM CDT
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BRYAN, Texas (KBTX) - Despite not getting passed during the biennial legislative session, bail reform remains a top priority for state lawmakers. District 12 Rep. Kyle Kacal confirms it will be included in a still to be announced special legislative session this month. While there were disagreements on some aspects of House Bill 20 and House Joint Resolution 4, the two sides agree that passing bail reform is a necessary step to ensure justice in the Lone Star State.

Prairie View A&M University Dean of Juvenile Justice and Psychology Camille Gibson says the current bail system is broken.

“There is the need to balance individual rights with community safety so there is room for change in Texas,” Gibson explained.

She said the state must do what it can to ensure those arrested, but not convicted of crimes, deserve access to bail. Gibson said that needs to be balanced with the ability for prosecutors and judges to evaluate defendants and determine whom among those may pose a risk to public safety. She said there is a need for judges to have the power to detain those individuals but argues that the language in some of the legislation can be too narrow.

“The requirement that persons accused of a sex offense where the victim is under 17 must be denied bail except in the most extraordinary circumstances,” Gibson gave as an example, “that could be a tricky situation because there are so many possibilities when we’re talking about young victims.”

She said there should be a more thorough examination of the language used so as to allow judges and prosecutors more flexibility to determine what happens to the accused. Gibson explained the process for determining who should be denied bail will require judges to make a “careful assessment of dangerousness.”

“We do certainly hear about persons accused of various serious offenses who are back out on the streets rather quickly,” Gibson said.

But ultimately, Gibson reiterated that the key to sensible bail reform will be balance.

“We need to make sure that we are not routinely denying bail to persons simply because they’re poor,” Gibson explained, “and we need to have proper assessments available to judges to determine who is truly a potential flight risk and who, based on the totality of the facts that are before the court prior to trial, and based on what we know about the suspect, are persons who could indeed be dangerous to the victim, to potential witnesses, law enforcement, and the community. So we need rigorous assessments available to the judges so they can make some decisions about who gets bail.”

College Station Presiding Municipal Judge Ed Spillane said that’s exactly what he hopes forthcoming legislation provides.

“It’s very important that we make sure that we provide training and an update,” Spillane explained, “especially if the law changes so that we’re consistent. So we don’t go to a jail and see that the people in jail are people who’ve been arrested on nonviolent misdemeanors, and they’re just there because of their indigency.”

Spillane serves as a member of the state judicial council. He said the council believes the bail reform that’s being proposed in the state legislature can change the process to more effectively carry out justice.

“The two goals of bail is to protect society from defendants’ future crimes and also make sure people come to court,” Spillane explained.

He said that the pandemic forced the court system to create innovative ways to release nonviolent offenders while ensuring that they would still show up for their court date. Spillane said text messages and phone calls reminding the accused of their court date worked better than the pre-pandemic system. That’s one of the reasons he believes the system can change in a positive way.

“We don’t want indigent people being in jail simply because of their economic status,” Spillane explained, “but we also don’t want someone who’s committed a very violent offense to be out there to further commit crimes.”

He said the current system guarantees bail for almost all crimes aside from capital murder. These reforms would allow judges to have more control in assessing the accused person’s request for bail. But those decisions would not be based solely on the judge’s opinion. HB 20 would incorporate a statewide system for assessing a defendant’s risk for violence and the risk they may not show for their day in court. Spillane said states that have already incorporated similar assessment tools have seen positive outcomes.

“As technology progresses, we should be able to use that technology to very quickly look at the criminal background, assess the economic status, and put all these factors in,” Spillane argued, “because the magistrate has within 24 hours to make that bail decision. So we should use technology, with a risk assessment tool, and benefit [from] what other states have found to work very, very well. In states that have used a risk assessment tool, failure to appear courts have gone down. That’s just a fact.”

But Gibson argues that a system designed to assess the risk a certain defendant poses must be thoroughly vetted.

“When we’re talking about the more serious offenses, the concern is about how just the system is in terms of what law enforcement officers do and in terms of any implicit or explicit biases that might seem evident to persons who are in the court system,” Gibson explained, “and there’ve been complaints about that in certain jurisdictions; about judges who seem to be biased in some way when certain types of defendants come before them. We’ve had that problem in Texas.”

Watch the full interview in the player above.

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