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Fifth Circuit Shines Light on Road to Texas Bail Reform

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by Ken W. Good Attorney at Law Magazine Published February 1, 2021 Texas has a bail problem, but it is not what is portrayed in the news. The issue is how to process large groups of people efficiently and cost effectively through the jails of our largest counties. Historically, this has been done through the use of individual magistration and bail schedules. The reason for this is that the cost of individually magistrating every person arrested in our largest urban areas is expensive. Reformers have advocated for alternatives to bail schedules that would also allow for the quick release of large numbers of defendants. These groups have focused on risk assessment tools and simple release. However, the reality of these alternatives have never gotten close to their expectations. Scientific studies have now caught up with the proposed use of risk assessments, concluding that they should not be a part of criminal justice reform. A recent article updated this past December by authors from Ha

5th Circuit Hands Another Victory to Bail Industry

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Historically, there are 5 methods used to determine whether to release people from jail. These methods are: individual magistration, a reasonable bail schedule coupled with procedural protections for the poor, the use of risk assessments to take the place of magistration, simple release and preventative detention. A county may use one or more of these methods. If your county is using individual magistration only, then you need go no further. You are in full compliance with the federal court mandates for bail practices that satisfy the constitution.  The litigation that has been filed involved the use of bail schedules. This litigation has lead courts to try other forms of release such as risk assessments (now disfavored) or simply releasing certain classes of arrestees such as all misdemeanors on PR bonds (something similar was tried in New York with such bad results the New York Legislature repealed many of the reforms even during the pandemic). These methods have been a disaster. The

Current Status of Risk Assessments- Rejected in California

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California Voters Reject California’s Proposal to Abolish Private Surety Bail System and Use Pretrial Risk Assessments On November 3, 2020, California asked its citizens whether to abolish the private surety bail system and replace it with a state wide risk assessment tool.  In a stunning defeat, the voters rejected Prop. 25. In 2018, the California Legislature passed Senate Bill 10, to ban private surety bail and to replace it with a state wide expensive risk assessment tool procedure state wide.  The statute was not implemented until it was presented to the voters for adoption on November 3rd. In a stunning defeat, voters rejected the legislation.  The item on the ballot was Proposition 25. Community groups against Proposition 25 said in a statement after the election that voters “took heed of our alarms” about eliminating cash bail. “We warned our communities that if passed, Prop. 25 would automate racial profiling, give unchecked power to judges and increase funding and pow

Why Not a Presumption of Release? New York Tried it With Devastating Results

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Why Not Just Release Certain Defendants Accused of Low Level Crimes? For the last few years, Texas Judges have been under attack from all sides.  Even OCA seems to have crossed the line of an agency compiling information for the Texas Legislature and is attempting to become a co-executive in setting policy. Four years ago judges were told that the private surety bail system was going to be declared unconstitutional.  Therefore, counties were told by consultants that they should adopt risk assessments and that would ensure that they were not sued by activist groups over their bail practices.  Dallas County spent millions doing just that to then be sued anyway.  Next, the 5th Circuit handed down opinons in O'donnel I and O'donnel 2 holding that if a county used a bail schedule, it had to have procedural protections for the poor so that they would have an opportunity to ask for a deviation from the scheduled amount.  Also, the 11th Court of Appeals and the 5th Court of Appeals hel

How Will the Democrats' Failed "Blue Wave" Affect the Upcoming Texas Legislative Session?

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How Will the Democrats' Failed "Blue Wave" Affect the Upcoming Texas Legislature? Texas Lawyer spoke recently with Ken W. Good, an attorney who has argued cases before the Supreme Court of Texas and currently sits on the Board of Directors for The Professional Bondsmen of Texas.  The highly anticipated Democrat “blue wave” that was supposed to sweep across the United States in the 2020 presidential election never crested. Moreover, Democrat control of the House narrowed to it’s lowest margin in the past 20 years, record numbers of African Americans and Latinos voted for Trump, and the President’s support increased beyond expectations in some quarters (like Florida). None of this was supposed to happen. Most disappointing of all for Democrats, though, was their long-held dream of turning deep-red Texas blue failed again despite their having poured enormous sums of money into the Lone Star State. Texas Lawyer spoke recently with Ken W. Good, an attorney who has argued cases

Bond Funds Are Not the Answer

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by Eric Granof Over the past many years, the criminal justice system has looked for ways to simplify release.  From taxpayer funded pretrial services to 10% cash bonds to pretrial risk assessment tools to the outright elimination of bail and simply releasing defendants, the criminal justice system has been willing to look at many different approaches to release.  But there is a reason why the private bail industry has been around for over 200 years and that it is because the facts document again and again that it is the best method of getting people to court and in keeping the criminal justice system moving forward to get cases resolved and bring resolution to crime victims.   This past year, once again another new approach to release has been initiated.  This new approach is not legislative in nature.  It is not even designed to improve or reform the bail system.  It has one goal and one goal only, to disrupt and dismantle the system.  This new approach to release is what is known as

In Historic Election, California Rejects Risk Assessments; Retains Cash Bail System

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On November 3, 2020, the voters of California were asked to replace the private bail industry with a state program that utilized a risk assessment tool system that has come under question over the last two years as more research has concluded that risk assessments should not be a part of any criminal justice reform.  California voters stuck with the state's traditional cash bail system in this year's balloting, rejecting the law adopted by the state legislature that would have replaced the private industry with a state-wide pretrial release system that at its heart utilized a risk assessment tool.   Voters in California overturned a 2018 law that never went into effect because of a ballot initiative that placed the matter before the voters.  With more than 11 million votes counted, the measure failed Wednesday with 55% opposing and 45% favoring an end to the current bail system.  Therefore, the law will not go into effect. Various groups opposed the law including:  Human Rights