Will Bonds be set by computer programs?

  I was leaving a great night with law enforcement officers, spouses, and supporters for the Thin Blue Line Ball held at the Rock Creek in McKinney on Sat. May 29th. On the way home I get a phone call from Honolulu. 

  Dog the Bounty Hunter wants to talk to me. We share some common ground. I'm from the Dumas area and Dog is from Pampa. We have some other connectivity that kept the conversation going into the night.

  The reason for the call was to alert me to a bill which passed a Senate sub committee (S.B.1338) and (H.B. 3011) and goes to the floor this week. This is a bill that can be traced back to Soros/Holder connected legislation designed to reduce jail occupancy by allowing more accused to be released.

   I am doing my research. Today I talked to sheriffs, constables, JP's, police chiefs, and legislators. I have no opinions. Well, not exactly. 

  What about letting a computer program determine qualifications for Personal Recognizance bonds?

  The following is worthy analysis, then I ask for smarter people than me to chip in opinions.

jbblocker

Issues and Concerns regarding SB 1338 and HB 3011 Substitutes—Updated 4/20/17

These bills create a costly and unnecessary bureaucracy that would result in many unintended negative consequences. This seems especially problematic given that current law already provides Judges the ability to utilize PR and Pretrial Release options for those that cannot afford bail.

The proposed legislation is an Unfunded Mandate to Counties.  Cost of implementing the mandatory Automated Risk Assessment Tool and related costs to each county will vary but for reference: 2015 pretrial budget for Travis County was 5. 5 million; Tarrant County was 1.1 million; and Harris County was 7.2 million.  

• 
  Although the substitute bills direct the state (i.e. taxpayer) to pick up the tab on development of The Automated Risk Assessment Tool (ARAT), counties are mandated to implement the required ARAT (hiring, training, equipment, integration software, and information technology maintenance, and so on) as well as other costs at their own expense with no help from the state. All data will have to be entered and compiled manually.
• To the extent which the Personal Bonds are favored over the assessments all the jail releases, intakes, case management, supervision, and recovery that bail bondsmen currently provide at no cost to the taxpayer will have to be handled by the Personal Bond office or the equivalent.
• Additional Magistrates and other personnel may need to be hired to comply with the requirements of the bills. For example, the bills require that the ARAT be conducted on ALL misdemeanor and felony charges, considered with other factors, and arraigned, all within 48 hours. Additionally, note that a defendant who might otherwise post bail within hours on a bail schedule may be detained as long as 48 hours waiting for assessment thereby increasing costs.  
• Counties may need to cover the costs of Electronic monitoring or drug testing for indigent defendants.
• The county loses a portion of bond forfeiture payments (25 million statewide annually), posting fees that go to pay for prosecutors and indigent defense (7 million statewide annually), and court costs on bond forfeitures (3 million statewide annually). These sums provide funding for various programs including Judge’s salaries.
• Anticipated higher crime rates due to the “revolving door” effect created by expansion of Pretrial Release will increase demand at every level of our criminal justice system and will necessitate greater funding.
• There are many reasons why that the bill will not save money by reducing jail population as intended. These reasons include “revolving door” higher crime rates; fixed costs of jails; most low risk defendants bond out already since bonding companies offer credit terms; low percentage in jail of low risk detainees (only 12% statewide pretrial detainees are misdemeanors); many detainees have mental health issues and should not be released without support system involvement.
• Although low-risk indigent defendants without a support system may need assistance, the bills seek to expand the pool of Personal Bonds to ALL low-risk defendants, even though they are able to afford bail on their own. This creates a “Criminal Welfare” bureaucracy and increases exponentially the burden on the taxpayer.

The proposed bills would create a Public Safety problem by increasing the number of unsupervised and unaccountable defendants on the street, posing a risk of re-traumatizing the crime victim.

• Under the current legal statute, bondsmen engage the defendant’s family and friends, to help support the defendant to stay on track and show for court appearances. Most reliable studies have shown that bondsmen have lower forfeiture rates than Pretrial Release, have lower recidivism rates than Pretrial Release, and quicker recovery rates than Pretrial Release after defendants fail to appear.
• There is no financial consequence to the defendant on Personal Bond if they do not appear at court and no one with financial consequence to find them when they fail to appear. We can also anticipate that since no bondsman is looking for them then there will be unnecessary delays in resolving those criminal cases.
• There is a danger to re-traumatizing the true victim of the crime when they learn that their perpetrator is free to go by signing his or her name. Victims need to know that the accused will show up at court and will be held accountable.
• Crime rates have risen in states like California and Kentucky since bail reform was implemented. Law Enforcement and Public Officials in New Jersey have called for repeal of the bail reform legislation implemented just this January because of their public safety concerns.

The required Automated Risk Assessment Tool is not transparent or reliable, and is potentially biased.

• Accurate risk assessment must always take into consideration criminal history but the ARAT does not score based on arrests, but only on convictions.  Also, the lack of timely entered data would prevent tool reliability.
• Other shortcomings of ARATs include: Lack of standardization, differences in calculating fail to appear, lack of definition of pretrial population, ARATs calibrated to lowest risk groups, inadequate data input, questions of due process related to proprietary algorithms, and so on.
• There is much national concern and some evidence that computerized risk assessments are racially and gender biased.
• The algorithms of ARATs are unpublished and therefore not scrutinized and unmonitored. This introduces elements of secrecy that undermines faith in our criminal justice system.
• The ARAT displaces the power of the electorate (elected judges) into the hands of unseen “Big Brother” behind-the-curtain actors. Who’s programing and calibrating the “Black Box” and how?

These bills would weaken Judicial Discretion.

• Judges are required to take into consideration the results of the ARAT, and this MUST be considered in their arraignment process on all bonds.
• Judges are limited to the “least restrictive conditions and the minimum amount of bail” that ensures “appearance in court” and “safety of the community.” This slippery slope could lead to complete loss of judicial discretion if the mandate is interpreted (by higher courts) to mean whatever the ARAT “decides.”
• If a defendant who has been granted Personal Bond fails to appear and has a “good cause” for missing his court date, the bill requires the Judge to grant Personal Bond again.
• Judicial conflict—under the proposed legislation a defendant can be released (by PB or otherwise) by a magistrate in a county other than the county that the warrant was issued out of.
• Judges will have to give notice to the defendant prior to raising the defendant’s bond, thereby allowing the defendant opportunity to flee before the bond is raised.

Texas Senate Bill 1338 Is it a good thing?

The Texas Senate is considering a bill to allow an increase of PR Bonds to those who can't afford a bond. There is of course much more to the ramification. It will affect the smaller counties differently than the big boys.
I have my opinions, but they don't count. Smarter people than I need to fill in the blanks.

	By: Whitmire	S.B. No. 1338
	(In the Senate - Filed March 6, 2017; March 14, 2017, read
	first time and referred to Committee on Criminal Justice;
	April 24, 2017, reported adversely, with favorable Committee
	Substitute by the following vote:  Yeas 7, Nays 0; April 24, 2017,
	sent to printer.)
Click here to see the committee vote
	COMMITTEE SUBSTITUTE FOR S.B. No. 1338	By:  Whitmire

	A BILL TO BE ENTITLED
	AN ACT
	relating to bail and to judicial education regarding bail
	practices.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
	SECTION 1.  Chapter 17, Code of Criminal Procedure, is
	amended by adding Articles 17.027, 17.028, 17.029, and 17.034 to
	read as follows:
	Art. 17.027.  PRETRIAL RISK ASSESSMENT. (a)  The judges of
	the county courts, statutory county courts, and district courts
	trying criminal cases in each county shall adopt an instrument to be
	used in conducting a pretrial risk assessment of a defendant
	charged with an offense in that county. The instrument adopted must
	be the automated pretrial risk assessment system developed under
	Section 72.032, Government Code, or another instrument that is:
	(1)  objective, validated for its intended use, and
	standardized; and
	(2)  based on an analysis of empirical data and risk
	factors relevant to:
	(A)  the risk of a defendant failing to appear in
	court as required; and
	(B)  the safety of the community or the victim of
	the alleged offense if the defendant is released.
	(b)  A magistrate considering the release on bail of a
	defendant charged with an offense punishable as a Class B
	misdemeanor or any higher category of offense shall order that:
	(1)  the personal bond office for the county in which
	the defendant is being detained, or other suitably trained person,
	use the instrument adopted under Subsection (a) to conduct a
	pretrial risk assessment with respect to the defendant; and
	(2)  the results of the assessment be provided to the
	magistrate without unnecessary delay to ensure that the magistrate
	is able to make a bail decision under Article 17.028 within the
	period required by Subsection (a) of that article.
	(c)  Notwithstanding Subsection (b), a magistrate may
	personally conduct a pretrial risk assessment using an instrument
	adopted under Subsection (a).
	(d)  The magistrate must consider the results of the pretrial
	risk assessment before making a bail decision under Article 17.028.
	Art. 17.028.  BAIL DECISION. (a)  Without unnecessary delay
	but not later than 48 hours after a defendant is arrested, a
	magistrate shall order, after considering all circumstances and the
	results of the pretrial risk assessment conducted under Article
	17.027, that, unless otherwise prohibited by law, the defendant be
	released on:
	(1)  personal bond or monetary bail bond without
	conditions; or
	(2)  personal bond or monetary bail bond with any
	condition the magistrate determines necessary.
	(b)  A magistrate may release a defendant arrested pursuant
	to a warrant that was issued in a county other than the county in
	which the defendant was arrested if a bail decision has not
	previously been made by another magistrate and if the magistrate
	would have had jurisdiction over the matter had the warrant been
	issued in the county of arrest. If applicable, the magistrate shall
	forward a copy of the bail order to a personal bond office in the
	county in which the arrest warrant was issued.
	(c)  In making a bail decision under this article, the
	magistrate shall impose, as applicable, the least restrictive
	conditions and the minimum amount of bail, whether personal bond or
	monetary bail bond, necessary to reasonably ensure the defendant's
	appearance in court as required and the safety of the community and
	the victim of the alleged offense.
	(d)  A magistrate may not require a defendant to provide a
	monetary bail bond for the sole purpose of preventing the
	defendant's release on bail.
	(e)  If the magistrate determines that a defendant is not
	indigent and is able to pay any costs related to a condition of the
	defendant's bail, the magistrate shall assess the costs as court
	costs or order the costs to be paid directly by the defendant as a
	condition of release.
	(f)  A judge may not adopt a bail schedule or enter a standing
	order related to bail that:
	(1)  is inconsistent with this article; or
	(2)  authorizes a magistrate to make a bail decision
	for a defendant without considering the results of the defendant's
	pretrial risk assessment.
	(g)  This article does not prohibit a sheriff or other peace
	officer, or a jailer licensed under Chapter 1701, Occupations Code,
	from accepting bail under Article 17.20 or 17.22 before a pretrial
	risk assessment has been conducted with respect to the defendant or
	before a bail decision has been made by a magistrate under this
	article.
	Art. 17.029.  DEFENDANT APPEARING IN RESPONSE TO CITATION.
	A defendant who appears before a magistrate as ordered by citation
	may not be temporarily detained for purposes of conducting a
	pretrial risk assessment or for a magistrate to issue a bail
	decision.  The magistrate, after performing the duties imposed by
	Article 15.17, shall release the defendant on personal bond, unless
	the defendant is lawfully detained on another matter.
	Art. 17.034.  RELEASE OF DEFENDANT ARRESTED FOR FAILURE TO
	APPEAR. A magistrate shall release on personal bond a defendant who
	was released on personal bond and subsequently arrested on a
	warrant issued for the defendant's failure to appear as ordered if
	the defendant shows good cause for the failure to appear. If good
	cause is not shown, a magistrate may release the defendant in
	accordance with Article 17.028.
	SECTION 2.  Section 4, Article 17.09, Code of Criminal
	Procedure, is amended to read as follows:
	Sec. 4.  (a)  Notwithstanding any other provision of this
	article, the judge or magistrate in whose court a criminal action is
	pending may not order the accused to be rearrested or require the
	accused to give another bond in a higher amount because the accused:
	(1)  withdraws a waiver of the right to counsel; [or]
	(2)  requests the assistance of counsel, appointed or
	retained; or
	(3)  is formally charged with the same offense for
	which the accused was initially arrested and bond was given, except
	as provided by Subsection (b).
	(b)  The judge or magistrate may order the accused to be
	rearrested or require the accused to give another bond in a higher
	amount based on the circumstance described by Subsection (a)(3)
	only after providing notice to each party to the action and, on
	request of any party, an opportunity for a hearing.
	SECTION 3.  Article 17.20, Code of Criminal Procedure, is
	amended to read as follows:
	Art. 17.20.  BAIL IN MISDEMEANOR.  In cases of misdemeanor
	when the defendant is in the custody of the officer or jailer, the
	sheriff or other peace officer[,] or a jailer licensed under
	Chapter 1701, Occupations Code, may, whether during the term of the
	court or in vacation, [where the officer has a defendant in
	custody,] take [of] the bail of the defendant as the officer or
	jailer may consider reasonable [a bail bond].
	SECTION 4.  Article 17.21, Code of Criminal Procedure, is
	amended to read as follows:
	Art. 17.21.  BAIL IN FELONY. (a)  In cases of felony, when
	the defendant [accused] is in the custody of a [the] sheriff or
	other peace officer or a jailer licensed under Chapter 1701,
	Occupations Code, and the court before which the prosecution is
	pending is in session in the county where the defendant [accused] is
	in custody, the court shall make a bail decision in accordance with
	Article 17.028. After approving the bail, the [fix the amount of
	bail, if it is a bailable case and determine if the accused is
	eligible for a personal bond; and the sheriff or other peace]
	officer, unless it be the police of a city, or [a] jailer may
	[licensed under Chapter 1701, Occupations Code, is authorized to]
	take the [a] bail [bond] of the defendant [accused in the amount] as
	ordered [fixed] by the court under Article 17.028. On taking the
	bail, the[, to be approved by such] officer or jailer shall [taking
	the same, and will thereupon] discharge the defendant [accused]
	from custody.
	(b)  The defendant and the defendant's sureties are not
	required to appear in court.
	SECTION 5.  Article 17.22, Code of Criminal Procedure, is
	amended to read as follows:
	Art. 17.22.  MAY TAKE BAIL IN FELONY. In a felony case, if
	the court before which the case [same] is pending is not in session
	in the county where the defendant is in custody, the sheriff or
	other peace officer[,] or a jailer licensed under Chapter 1701,
	Occupations Code, who has the defendant in custody may take the
	defendant's bail [bond in such amount] as ordered [may have been
	fixed] by the court or magistrate under Article 17.028[,] or, if
	bail [no amount] has not been ordered [fixed], [then in such amount]
	as the [such] officer or jailer may consider reasonable.
	SECTION 6.  Chapter 17, Code of Criminal Procedure, is
	amended by adding Article 17.251 to read as follows:
	Art. 17.251.  NOTIFICATION OF CONDITIONS OF RELEASE. (a)  A
	magistrate authorizing a defendant's release on bail shall, if
	applicable, provide written notice to the defendant of:
	(1)  the conditions of the defendant's release; and
	(2)  the penalties of violating a condition of release,
	including the defendant's arrest.
	(b)  The notice under Subsection (a) must be provided in a
	manner that is sufficiently clear and specific to serve as a guide
	for the defendant's conduct while released.
	SECTION 7.  Section 4, Article 17.42, Code of Criminal
	Procedure, is amended by amending Subsection (a) and adding
	Subsection (a-1) to read as follows:
	(a)  If a court releases a defendant [an accused] on personal
	bond on the recommendation of a personal bond office, the court
	shall assess a personal bond fee of $20 or three percent of the
	amount of the bail fixed for the defendant [accused], whichever is
	greater. The court may waive the fee or assess a lesser fee if the
	court determines that the defendant is indigent or demonstrates an
	inability to pay or if other good cause is shown. The court may
	require that any fee assessed under this subsection be paid:
	(1)  before the defendant is released;
	(2)  as a condition of release; or
	(3)  as court costs.
	(a-1)  Notwithstanding Subsection (a), the court or jailer
	may not refuse to release a defendant based solely on the
	defendant's failure to pay a personal bond fee if the defendant is
	indigent or demonstrates an inability to pay the fee.
	SECTION 8.  Article 17.43(a), Code of Criminal Procedure, is
	amended to read as follows:
	(a)  A magistrate may require as a condition of release [on
	personal bond] that the defendant submit to home curfew and
	electronic monitoring under the supervision of an agency designated
	by the magistrate.
	SECTION 9.  Article 17.44(e), Code of Criminal Procedure, is
	amended to read as follows:
	(e)  The cost of electronic monitoring or testing for
	controlled substances under this article may be assessed as court
	costs or ordered paid directly by the defendant as a condition of
	bond. A magistrate may reduce or waive a cost described by this
	subsection if the magistrate determines that the defendant is
	indigent or demonstrates an inability to pay.
	SECTION 10.  Section 54.737(c), Government Code, is amended
	to read as follows:
	(c)  The rules must provide that a criminal law magistrate
	judge may only release a defendant under Article 17.028(b)
	[17.031], Code of Criminal Procedure, under guidelines established
	by the council of judges.
	SECTION 11.  Section 56.003, Government Code, is amended by
	adding Subsection (b-1) to read as follows:
	(b-1)  In addition to the uses described by Subsection (b),
	funds appropriated for any fiscal year may be used to provide
	continuing legal education regarding bail practices to any master,
	magistrate, referee, or associate judge appointed pursuant to
	Chapter 54 or 54A as required by the court of criminal appeals under
	Section 74.025.
	SECTION 12.  Subchapter C, Chapter 72, Government Code, is
	amended by adding Section 72.032 to read as follows:
	Sec. 72.032.  AUTOMATED PRETRIAL RISK ASSESSMENT SYSTEM;
	PRETRIAL RISK ASSESSMENT INSTRUMENTS. For purposes of Article
	17.027, Code of Criminal Procedure, the office shall develop an
	automated pretrial risk assessment system and make the system
	available to judges and other magistrates in this state at no cost
	to a county, municipality, or magistrate.  The office shall also
	make available nonautomated pretrial risk assessment instruments
	to judges and other magistrates in this state at no cost to a
	county, municipality, or magistrate.
	SECTION 13.  The following provisions of the Code of
	Criminal Procedure are repealed:
	(1)  Article 17.03(g);
	(2)  Article 17.031; and
	(3)  Sections 5(c) and 6(c), Article 17.42.
	SECTION 14.  Not later than January 1, 2019, the Office of
	Court Administration of the Texas Judicial System shall develop the
	automated pretrial risk assessment system and make available
	automated or nonautomated pretrial risk assessment instruments as
	required by Section 72.032, Government Code, as added by this Act.
	SECTION 15.  Not later than January 1, 2019, the judges of
	the county courts, statutory county courts, and district courts
	trying criminal cases in each county shall adopt a pretrial risk
	assessment instrument as required by Article 17.027, Code of
	Criminal Procedure, as added by this Act.
	SECTION 16.  The change in law made by this Act applies only
	to a person who is arrested on or after January 1, 2019. A person
	arrested before January 1, 2019, is governed by the law in effect on
	the date the person was arrested, and the former law is continued in
	effect for that purpose.
	SECTION 17.  This Act takes effect September 1, 2017.
	* * * * *