| Perspectives on Texas

Is public safety for sale in Texas? Consider the case of Jason Wayne Carlile. He is a convicted Texas sex offender who in November 2018 was arrested on a new charge of raping a 14-year-old boy. Previously, he had been convicted of exposing himself to a two-year old boy and “purchasing” a 15 year-old girl for $3,000 from his mother. Carlile was initially set to remain in jail pending his trial because he could not afford the $150,000 bail, but his mother won a Texas lottery payout of $15.24 million, which enabled her to bail him out.

Carlile was no less dangerous the day after his mother won the lottery, but the Texas Constitution prohibits denial of bail in cases like his. And while someone like Carlile must be released, many lower-risk defendants are languishing in jail on low-level, nonviolent charges simply because they cannot afford bail. Texas taxpayers are spending more than $1 billion a year on pretrial incarceration in a way that is both under- and over-inclusive. Fortunately, lawmakers now have a chance to reform this broken system so that it is not a game of chance. 

The bail system in Texas is stuck between the rock of the U.S. Constitution and the hard place of the Texas Constitution. Setting money bail is permissible under the U.S. Constitution if the amount is no more than necessary to reasonably assure a defendant reappears in court. Release conditions, such as reporting to a pretrial supervision officer, may also be set to protect public safety. However, if the bail amount exceeds what the defendant can afford, it operates in practice no differently than denial of bail, since the effect is that the person remains in jail — often for months until a plea or trial. Yet when defendants in Texas cannot afford bail, they are often not accorded the due process of a timely hearing with representation by counsel to contest the bail amount. 

The Texas Constitution narrowly limits denial of bail to capital murder and certain domestic violence cases. This is woefully inadequate, since it prevents courts from simply denying bail, also known as preventive detention, in non-capital murder cases and other extremely serious cases. 

In the current system, prosecutors and judges may attempt to set high bail amounts in the hopes that the defendant won’t be able to pay and thus will remain in jail. However, with defendants like Carlile, that doesn’t work. Just as importantly, using money as a de factomeans of detention denies equal protection to defendants who are not wealthy. It also short-circuits due process, since unlike formal denial of bail, it cannot be appealed. Such legal problems with the current system have led to federal litigation in Houston, Galveston and Dallas, costing Texas taxpayers millions in legal fees. 

Lawmakers can fix this, in part, with an amendment to the Texas Constitution, which is pending as House Joint Resolution 62 and Senate Joint Resolution 37. Such an amendment should allow for preventive detention in cases involving serious violent or sex offenses after court hearings with representation. The final language of the amendment should also require clear and convincing evidence of both guilt and danger to public safety that cannot be reasonably mitigated through any set of release conditions.

Additionally, pending legislation — House Bill 2020, HB1323, Senate Bill 628 and SB 224 — would ensure an objective risk assessment is used to evaluate defendants. These assessments have been retroactively verified to predict with substantial accuracy a defendant’s risk of absconding and being re-arrested for a serious offense, by analyzing factors such as previous failures to appear and prior convictions. A risk-assessment instrument informs the discretion of a judge, but no algorithm dictates the result. 

Finally, another pending proposal, HB 3238, would require that jurisdictions using bail schedules — lists approved by local judges specifying bail amounts for certain offenses — hold a hearing within 48 hours if a defendant cannot afford the bail amount that is listed. Bail schedules operate on the false assumption that money bail is needed in most cases, despite research showing other approaches — such as text reminders of court hearings — are as effective, and perhaps even more so. Still, while being in jail for 48 hours is not without consequences, ensuring a hearing on ability to pay occurs within that timeframe would be a step forward. The legislation should further establish a presumption that, at the hearing, the bail amount be reduced to an attainable level. 

Texas’ current bail system relies on the luck of the draw instead of objective decision-making. Lawmakers must act to avoid more costly federal litigation and stop gambling with our safety and liberty. 

Disclosure: The Texas Public Policy Foundationhas been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.