It seems like a simple series of events: Someone is arrested and charged with a crime. They have a hearing. The judge orders bail in order to either keep them off the street if they are considered dangerous, or to increase the odds that they’ll show up for court. End of story.
What’s obscured by that simple and deceptive story is that the actual bail system in Texas (and nearly every other state) too often serves to punish poverty, exacerbate mental illness and burden the state with unnecessary costs while failing to make the public any safer.
It doesn’t have to be this way.
We have the knowledge and tools to replace our current resource-based bail system with a risk-based pretrial system.
To understand how this would work, consider who is in our jails right now. In many instances, nearly two-thirds of Texas jail inmates are awaiting trial, considered legally innocent, and unable to post bail.
In some counties, this statistic is more extreme. For example, during February, more than 70 percent of detained individuals are awaiting trial at the Harris County Jail, according to the Texas Commission on Jail Standards. More than 70 percent of detained individuals are awaiting trial at the Dallas County Jail, and more than 74 percent of detained individuals are awaiting trial at the Travis County Jail.
Within that larger population of pretrial inmates, many are dealing with mental health issues. In fact, on any given day Texas jails are holding more than 6,400 people who are awaiting trial who have symptoms of serious mental illness.
The money bail system pushes people who cannot afford to post bail into a difficult choice. They can either maintain their innocence and stay in jail, where they probably will jeopardize their mental health, family relationships, jobs and housing. Or they can plead guilty.
Both options create unnecessarily harsh outcomes.
Research shows that even short periods of incarceration can negatively affect a person’s health. Once jailed, people no longer have access to mental health treatments. Instead, they face disruptions in medication access, a loss of social support and a greater risk of abuse. And these outcomes are not surprising. Jails are designed to be correctional settings, not therapeutic ones.
It gets even worse for people in jail who are awaiting trial. Unable to purchase their freedom, unconvicted jail detainees are seven times as likely to commit suicide as their convicted peers.
An ineffective bail system defined by high costs and few rewards survives because it stands upon a structure of perverse incentives. High bail amounts have not been empirically proved to improve people’s likelihood to appear in court.
But a commercialized bail system does serve two key purposes. First, bail money profits the powerful bail bondsmen lobby. Second, the financial bail system increases pressure on defendants to plead guilty, which speeds up pretrial proceedings for overwhelmed court dockets.
Together, these realities demonstrate a disconcerting truth. In Texas, we prioritize convenience over the well-being of people who are poor, marginalized and mentally ill.
There is a better way to move forward. The pretrial process does not need to be a trap into which low-income people with mental illness disproportionately fall. Instead, bail reform provides a unique opportunity to divert Texans from sinking deeper and deeper into the criminal justice system.
To change the system, we need to abandon money bail schemes and adopt a frontend diversion strategy like that enabled by the Public Safety Assessment tool recently developed by the Laura and John Arnold Foundation.
The Public Safety Assessment is a data-driven tool that takes money out of the equation. It uses unbiased risk factors to help judges determine whether a defendant can be released into the community safely, released with the help of supervision services, or detained while awaiting trial. The assessment would decrease current pretrial detention costs, reduce future recidivism and, most importantly, improve mental health outcomes for vulnerable Texans.
By adopting a risk-based assessment tool, Texas can once again take the lead in transforming the criminal justice landscape.
In the wake of Sandra Bland’s suicide in a Texas jail, lawmakers have an opportunity to either maintain the dangerous status quo or pursue bail reforms that are both fair and smart. Now is the time to show Texans with mental illness that their life outcomes will be determined by their potential, not by how much they have in their bank accounts.
Lynda Frost is the director of planning and programs for the Hogg Foundation for Mental Health at The University of Texas at Austin.
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