By: Sanford L. Houston
The Houston Chronicle recently published an interesting story about some of the changes already being made in Harris County concerning bail reform.
The opening line specifically caught my eye, which read:
“It is about to get easier to get out of jail free.”
I’ve heard a local bail bondsman, Michael Kubosh, refer to personal bonds as “free bonds.” In federal court on last Monday, several of the attorneys representing Harris County officials in the civil rights case challenging the bail system spoke of “personal recognizance bonds.” None of these characterizations of personal bonds in Texas is accurate. There are no “free bonds,” and no one gets out of jail “free.”
The truth is that personal bonds create an obligation to pay a monetary amount if the bond is forfeited for failure to appear, just like the monetary bonds secured through bondsmen. The only difference is that the person is not forced to pay the 10% fee to the bondsmen. Bondsmen collect a non-refundable 10% fee, totaling hundreds or thousands of dollars. Once paid, that 10% is gone. Either way, whether a person is released through a bondsman or by means of a personal bond, the incentives for the person to appear in court are exactly the same – the forfeiture of the bond which subjects the person to the possibility of civil liability for the dollar amount of the bond and a warrant issued for the person’s arrest for failure to appear.
Bondsmen argue that they “bring people in,” but most of the time they don’t. Bounty hunters are almost never employed. In truth, people return to court on their own, or are brought in by police officers, who arrest them on arrest warrants for failure to appear.
So, there are no “free bonds.” People will not simply be released with absolutely no incentive to return. In fact, the incentive is exactly the same as if they went to a bondsman to obtain their release. No one is released “on their own recognizance” in Texas. All bonds, including personal bonds, involve obligations to pay money if the bond is forfeited.
Bondsmen talk about “free bonds” to create an illusion that money bonds provide greater public safety. They don’t. They do bring in approximately $40 million in fees per year for bondsmen, as the attached report of Project Orange Jumpsuit shows. A pretrial release system that conditions a person’s release on the public safety risk a person poses would promote public safety; one that turns on ability to pay does not.
There is some bail reform news that we should all be paying attention to, however.
Bail reform continues its steady march forward. This month brought an entertaining hearing in Federal Court in Houston over Harris County’s bail system. No word yet on whether any of the groups of defendants might be dropped from the case. It appeared, in my rather uninformed opinion, that the plaintiffs would prevail overall. The arguments being made by the county officials’ various attorneys seemed rather flimsy, but civil rights litigation is not my forte. What was clear, however, was that Judge Lee Rosenthal understood the bail process in Harris County, the case law relating to the lawsuit, and the allegations of the plaintiffs. She is one sharp jurist.
Regardless of what happens in the litigation, we should see some changes with the election of Kim Ogg as Houston’s new DA and Ed Gonzalez, the new Sheriff-elect. In fact, proving that there really is a new sheriff in town, Gonzalez filed an affidavit in the federal court litigation taking the plaintiff’s side. The current Harris County judges also sent out the attached letter letting defense attorneys know about some of the changes they have made and urging them to do their jobs and seek bail reductions. In truth, the most important development will likely be the recent election of a whole new slate of judges.
Organizations representing a rainbow of political persuasions from around the state are taking an interest in bail reform. There is a lively group called the Houston Property Rights Association, as well as interested individuals at UT’s law school. In addition, the Greater Houston Coalition for Justice (a coalition of several dozen civil rights groups) is planning a stakeholders forum on bail reform in January. If only the rest of the country got along this well!
And, speaking of the rest of the country, bail reform continues to pick up steam in several states. New Mexico passed a constitutional amendment making pretrial release decisions turn on a person’s dangerousness, allowing judges more latitude to hold the dangerous and creating a presumption of release for the non-dangerous. Maryland’s Judiciary Rules Committee created new bail rules, and Illinois is gearing up to make changes.
Stay tuned and get engaged, as more changes and updates concerning bail reform may be on the way.