The Texas Judicial Council (TJC) in 2015 established a “Criminal Justice Committee” to study bail practices in the state. The Committee recently released its 18-page report (October 2016) titled “Pretrial Decision-Making Practices” that calls for specific reforms in the state’s troubled bail system.


Detention Prior to Trial Should be Carefully Limited Exception


Citing an observation made by the late U.S. Supreme Court Chief Justice, William Rehnquist in the 1987 decision, United States v. Salerno, “in our society liberty is the norm, and detention prior to trial…is the carefully limited exception,” the report opened its analysis with this striking finding:


“Despite these bedrock principles, many defendants are detained in jail before and during trial – while they are presumed innocent – because they cannot post bail. In the past 25 years, the pretrial population in Texas jails has risen from just over 32 percent of the population to almost 75 percent of the population, excluding federal contract inmates and state parole violator inmates.”


Cost of Housing Pretrial Inmates is Burden to Taxpayers


According to the Texas Commission on Jail Standards, there were more than 41,000 jail inmates in Texas as of June 1, 2016. The annual cost to local governments to house these pretrial inmates is roughly $905,028,085, according to the Commission.


Human Cost Even Greater


Beyond these staggering fiscal expenditures lie the human costs. The TJC found that 25 percent of the defendants in felony cases will spend more than one year in jail before disposition of their case while 56 percent of the defendants in misdemeanor cases will spend over six months.


Pretrial Detention Increases Likelihood of Conviction


Worse yet, the TJC referred to a 2016 study from Philadelphia (“Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes”—May 2, 1016) that found pretrial detention increases the likelihood of conviction by 13 percent “due to an increase in the number of guilty pleas among defendants who would have otherwise been acquitted or had their charges dismissed.”


Bias Against Non-Whites


Inevitably, race plays a major role in the nation’s bail system. The TJC referred to “over 25 research studies” that found African-Americans defendants “are more adversely impacted by pretrial detention decisions than are white defendants.”


This racial discriminatory practice occurs in Texas as well. The TJC cited a study of the Dallas County bail system that showed there was “’substantial evidence of bias against blacks in bail setting.’”


The same bias applies to Hispanic defendants.


In 2008, a study titled “Pretrial Release of Latino Defendants Final Report” prepared by David Levin found that of those subject to pretrial detention, Hispanics are “mostly likely to have to pay bail, the group with the highest bail amounts, and the groups least able to pay bail.”


Flaws in Texas’ Bail System


The TJC found the following nine specific flaws in the current Texas bail system overseen by magistrates:


  • It is primarily void of evidence-based pretrial risk assessment with which to determine the defendant’s flight risk or risk to public safety.
  • Addresses ensuring that the defendant will appear and answer the accusation brought against him/her most often through a monetary condition of release.
  • Prohibits managing the risks of pretrial misconduct through the denial of bail. For all defendants charged with a crime, with certain few exceptions, the Texas Constitution requires a bail to be set or the defendant released.
  • Is primarily dependent upon a defendant’s ability to post monetary bail, which, in turn, is dependent upon his/her financial resources.
  • Results in detention of poor defendants who present low risks of flight or danger to the community.
  • Results in release of more affluent defendants who present severe risks of flight or danger to the community.
  • Attempts to mitigate risk of flight or danger to the community through nonmonetary conditions of release, such interlock devices on vehicles and “no contact” conditions, or through the setting of a high amount of monetary bail.
  • Is dependent upon the defendant’s compliance with nonmonetary conditions to protect the public.
  • Is ineffective in ensuring the defendant’s compliance with nonmonetary conditions due to a lack of supervision in place to monitor the defendant’s compliance with nonmonetary conditions.


Recommendations for Improvements


After issuing this blistering indictment of the current Texas bail system, the TJC made the following eight recommendations to the state’s Legislature


  • The Legislature should require defendants arrested for jail able misdemeanors and felonies to be assessed using a validated pretrial risk assessment prior to appearance before a magistrate under Article 15.17, Code of Criminal Procedure.
  • The Legislature should amend the Texas Constitution bail provision and related bail statutes for a presumption of pretrial release through personal bond, leaving discretion with judges to utilize all existing forms of bail.
  • The Legislature should amend the Texas Constitution and enact related statutes to provide that defendants posing a high flight risk and/or high risk to community safety may be held in jail without bail pending trial after certain findings are made by a magistrate and a detention hearing is held.
  • The Legislature should provide funding to ensure that pretrial supervision is available to defendants released on a pretrial bond so that those defendants are adequately supervised.
  • The Legislature should provide funding to ensure that magistrates making pretrial release decisions are adequately trained on evidence-based pretrial decision-making and supervision levels.
  • The Legislature should ensure that data on pretrial release decisions is collected and maintained for further review.
  • The Legislature should expressly authorize the Court of Criminal Appeals to adopt any necessary rules to implement the provisions enacted by the Legislature pursuant to these recommendations.
  • The Legislature should provide for a sufficient transition period to implement the provisions of these recommendations.


The TJC goes on to provide a detailed analysis of why each of its recommendations should be adopted by the Texas Legislature. The TJC’s report offers the Legislature a road map to help address and correct the laundry list of inequities and flaws in the state’s current bail system. We can only hope that lawmakers will seize this opportunity.