Fifth Circuit Shines Light on Road to Texas Bail Reform

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 Harvard University and the University of Massachusetts noted that the widely-used risk assessment tool from Arnold Ventures contained a gender bias.

In fact, risk assessments have been falling out of favor since at least 2019 when some of the largest digital companies in the world issued a joint statement concluding that they had been rushed into use without sufficient study. Companies including Google and Amazon argued that while certain algorithms were effective at predicting what a group will do, the same algorithms were terrible at predicting the same for individuals.

Some reformers have suggested that a risk assessment tool should not make final decisions, but instead, should be used as just one more piece of information for a magistrate to review. Unwittingly, in so doing, reformers are actually calling for a mandate to provide individual magistration, which does not achieve the relief sought for the largest counties. Instead, their “solution” actually causes chaos because the largest counties lack the time and resources to provide individual magistration.

Other reformers have advocated for another alternative. This proposal involves the simple release of certain classes of defendants, either on no-bond or on artificially-low PR (personal recognizance or free) bonds. These measures were implemented in New York state at the start of 2020 and were such an abysmal failure that the state legislature repealed wholesale portions of them even in the midst of the COVID-19 pandemic. Some police officers noted that they spent considerable time rearresting the same individuals each day, only to have them released before the paperwork could be completed.

It was in this environment that the United States Court of Appeals for the Fifth Circuit released its opinion in the case of Daves v. Dallas County, which addressed Texas’ bail procedures. In Daves, the Fifth Circuit addressed the procedural requirements that must be in place when using bail schedules. The decision is important because it made key distinctions between county court judges and district court judges, while hinting that it might have come to a different conclusion regarding county judges if not for the prior Fifth Circuit precedent in the case of ODonnell v. Harris County.

To opinion also . . .

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