In recent articles for The Tyler Loop, I have given bail a thorough exploration, from its historical foundations to its consequences and costs for all community members. In my third and final installment, I focus on Smith County’s policies and spoke with key elected officials on the Criminal Justice Coordinating Committee.
Smith County has not escaped the conversations and questions surrounding the current bail reform movement. County Commissioner JoAnn Hampton serves as the Commissioner’s Court representative on the Criminal Justice Coordinating Committee (CJCC).
According to Hampton, the committee was created “when we were trying to get the jail built and to make sure that law enforcement needs were met. Whenever there is a major issue or something, we will have a committee meeting and try to bring everybody together to discuss those issues.”
When Commissioner Hampton addressed the issue of bail and bail reform during the May 2018 CJCC meeting, then 114th District Court Judge Christi Kennedy called bail reform “probably the hottest topic in criminal justice right now.”
A conversation with JoAnn Hampton
The following are excerpts from my conversation with Hampton. Her comments suggest that bail in Smith County has become an even hotter topic.
Why did you address the issue of bail and bail reform in the May 2018 CJCC Meeting?
Because Harris County had this lawsuit going on. (Harris County’s bail practices were ruled unconstitutional and discriminatory against the poor.) I had attended a meeting in Washington D.C where they were talking about how bail reform needed to take place all across the country. I came back trying to figure out how we might do something here in Smith County.
What reforms would you like to see in our cash bail system?
We are very tough on crime. That’s the thing, everybody in Smith County wants to be tough on crime, but a lot of times a person’s life is destroyed by tough on crime.
I would like to see that the amount of bail actually reflects the seriousness of the crime. If I stole a couple of packs of cigarettes or got a DWI, I am a first-time offender, and my bail is set at $25,000. Does my crime warrant that, or should my bail be $2,500? The amount of the bail is at the judges’ discretion.
People who are indigent can’t afford the high bonds, so they can’t get out of jail. They can’t afford the 10% fee that the bail bondsmen charge. Through our pretrial program, they can’t get out unless the judge approves their application. So, they end up just sitting in jail. We want to take the victim into consideration, but we also don’t want to use our jail as a place to punish someone before they have actually been found guilty of a crime.
And, also, this is just my opinion, but I have concerns that the bail may be impacted by a person’s race. All that can play into how the judge decides to set the bail.
We need to try to find a way to keep people from being repeat offenders. That’s a problem. We have so many repeat offenders. Why is that? Is it a socio-economic problem? Is it because we don’t have enough jobs, or we don’t have enough job training? Here’s the thing with people going to jail: Are they stealing because they don’t have the money to buy something, or are they stealing because they need somewhere to live, or they have an illness and need to be taken care of? We need to get to the root of the problem.
We need more programs to assist the first-time offender with job training, job placement, drug rehab, mental health care and other human services.
What types of diversion programs has Smith County initiated to address the issues contributing to repeat arrest?
We have the drug court, our veteran’s court and our mental health court. They are all functioning now. Again, they are for first-time offenders with non-violent offenses. [My concern is] What actually is the responsibility of the judiciary system? Is it our responsibility to make sure that people [with drug or mental health issues] don’t come into our jail again? Is it the responsibility of the family working with that person? Where do we draw the line?
You’ve talked about human service programs and diversion programs to address the bail and repeat offender issues. Looking at the FY2021 Smith County Budget, we see that the expenditures for law enforcement, jail operations and judicial including juvenile services are over 54.9% of the budget $61,075,426 – whereas the expenditures for public health and human services are less than 1% — $983,996.
How does the county determine budget expenditures when looking at budgeting for the jail and incarceration needs versus those health and human services needs – mental health, drug treatment, job training – those programs that, as you said, might address the root causes?
That’s a good question. The county does not spend as much money on public service programs as the city does. We give a small portion to public service agencies. It is not even a drop in the bucket for what they need.
Bear in mind we don’t have any excess money because our money is basically coming from taxes. We have to make sure we can afford to take care of the jail – pay employee salaries, food and healthcare for the inmates, making sure we have a facility up to code. That’s what we do with our money.
What do you think it will take to initiate bail reform in Smith County?
The judges would have to decide that is something they would want to do. I think the only way that is going to happen is we end up being sued like Harris county, and if they actually prove that our system is wrong.
So, we are waiting to be reactive instead of proactive with regard to bail reform?
Yes, because we, the Commissioner’s Court, can’t tell the judges what to do. Most of the time when we come up with these mental health courts, drug courts and other diversion and rehab programs, the judges are supportive.
If the programs are available, the judges would be willing to lower the bail and/or divert?
Yes, I think so, but, again, that is up to the district and county court at law judges on an individual case basis.
Commissioner Hampton’s repeated statement, “The amount of bail is at the judge’s discretion,” concurs with statements by District Attorney Putman, Sheriff Larry Smith and other county officials reported in my earlier article for The Tyler Loop.
A conversation with retired judge Cynthia Kent
Attempts to talk with current Smith County judges for the purpose of this article were unsuccessful. Retired Judge Cynthia Kent, who served 24 years as a Smith County judge both in the County Court at Law and in the 114th District Court, shared her perspectives on bail and bail reform. Below is my conversation with Kent.
When on the bench, what was your criteria in setting bail?
There are specific statutes that give judges direction on what they are supposed to look at when setting bail amounts. You want to set it high enough to provide reasonable assurance that the individual will show back up in court. It needs to be high enough to impress upon them that it is important to show up. That is the primary purpose of bail.
We get the person out of jail, but they have to come back to answer the allegation. We don’t want the amount to be excessive as to be essentially punishment. You want to look at the nature of the crime that’s alleged against them and the circumstances surrounding the commission of that crime.
Then you want to look at how much money can this person reasonably come up with? Are they poor, rich, middle income? What is an amount that is reasonable and impresses them, but is not onerous on them? Also, an important feature is providing safety provisions for the victims.
In your work and experience, were any of those criteria weighted any more than the others?
The legislation does not provide for any weighting of the criteria. If I had to weigh it, it is going to be what is the amount that is going to make sure the person comes to court. We want them to show up, so we don’t have to send law enforcement out to find them.
That requires resources from the community, and it is a safety issue for the law enforcement officers. In my mind, ensuring court appearance is the first thing to look at in setting bail. Really all of the criteria are important, but showing up to court is the first thing I would consider.
We now consider victim and public safety when setting bail, yet neither of those were considered in the original function of bail.
Yes, that is correct. We do have an amendment to the Texas Constitution (Bill of Rights, Article 1, Sec. 30, Nov. 1989) addressing victim’s rights and that anticipates the consideration of victim’s rights and public safety in setting bail.
In efforts at bail reform some jurisdictions are now using an empirical risk assessment tool in helping determine bail. What is your perspective on using a risk assessment tool?
My focus as a judge was what’s the Constitution, what’s the law, and let’s apply that. It is not for the judge to be king or queen for the day. I think risk assessment is what a judge does in considering the criteria for bail.
Now the use of the instruments can be helpful, and I don’t have any opposition to including them, but I will tell you those are psychological tools that consider the same things the judge would consider and have historically considered anyway in determining risk.
Kent said she thought Smith County judges are fine with risk assessment tools. “The question [regarding risk assessment tools] is can you give them quickly. Also, if you require them, keep in mind that a lot of times you are setting the bail before the defendant has a lawyer or much of an opportunity to ask for an attorney. You don’t want to put citizens who are accused of a crime in a position of being required to answer questions that could potentially be used against them in court.”
I’m sure you are aware of the push for bail reform and the litigation recently in Harris and Dallas County. What is your thinking with regard to a need for bail reform?
I’m always open to listening if someone has a better way of doing something. Let’s talk about it. People say, ‘Let’s reform this, let’s reform that.’
As a judge, I had people coming and complaining all the time. That’s fine. That’s your complaint, now what is your proposed solution? When we talk about bail reform, my response would be, ‘Okay, what are you proposing, and let’s look at that and see if it really addresses the issue in a responsible way.’ It’s not just turning out people on low bonds who may go out and re-offend and create more victims. That’s not appropriate.
Is [bail] something that helps get the defendant back to court? Some people are upset with bond companies and them charging to post the bond. There are people that cannot afford the bond and so the bond companies take the risk and make a financial commitment that that person will be back in court.
The thing is if the bondsman doesn’t get the person back in court, then by gosh, they should have to pay. That incentivizes them to do their job which is to make sure Mr. or Ms. Defendant get back in court on the day their case is heard.
If you are talking about bail reform to do away with bondsmen, I don’t agree with that. I think they serve an important function of our court system. My experience has been that people who have a bondsman tend to come to court more reliably than people that are out on PR bonds who have not posted anything essentially. They have no skin in the game, so they do not show up for court.
Speaking of bondsmen with the incentive to see that their client appears in court as scheduled, in 2019 District Attorney Putman revised some of the rules for bondsmen. Previously if his client failed to appear in court, the bondsman paid the court only the 10% that the client paid him when securing the bond. That being the case, if his client did not show up for court, the bondsman was really not out any money. With the change, the bondsman pays 60% of the original bail amount if his client fails to appear in court. What is your thinking on the rule change?
If I had a defendant who had a $500 bail; was out on bond and didn’t appear in court, then the bondsman would pay $500. The DA has a lot of things to consider and being cost effective is certainly one of them. If he found the change to be cost effective, that’s great. It’s his job to make that call.
As a judge my opinion is if the defendant doesn’t show up, first of all they get a warrant issued for their arrest, then charged with a new crime called Failure to Appear, and the bondsman pays the bond or the bond that was posted.
How much the bondsman must pay the court is up to the DA’s office because enforcement of the bond is essentially a civil matter. Also, if a defendant fails to appear in court, a bench warrant is issued and they are picked up, then normally the bond for that is triple the original bond.
A conversation with Jacob Putman, Smith County District Attorney
I also spoke with Smith County District Attorney Jacob Putman, CJCC member. Here are excerpts from our conversation.
Let’s talk about risk assessment in setting bail – flight risk, risk of a repeat offense, etc. In efforts at bail reform, some jurisdictions are using empirical risk assessment tools. What is your perspective on the use of such tools?
I can’t speak to what the individual judges use here, but we don’t have a standard risk assessment tool – no psychological test. If you go to a risk assessment tool, that sounds like a great idea – taking a test to determine your risk to the community.
Of course, then the question is how good is that test. I don’t think you will get any psychologist who will write a test and promise you that those who pass the test are not going to hurt anybody.
It is a very difficult thing because what we are talking about is predicting future behavior and nobody can really do that. We have things that we can look at that make us more worried about one person than another, but no one has a crystal ball, right?
What type of reforms would you like to see in the bail system?
That’s a tough question. I think it was Winston Churchill who said that democracy is the worst system of government except for all the others. Our bail bond system may be something similar. The system we have of bail dates back to England.
Promising something that you care about, money in our system, as surety to show up – that makes sense. How well is it working today? I don’t think anyone would argue that there aren’t flaws in the system. The struggle is to come up with a better one.
What do you perceive as possible barriers to bail reform?
If you’re talking about reforming to a system that doesn’t include bail bondsmen, then obviously bail bondsmen are a pretty big obstacle. They obviously don’t want to lose their business and that’s understandable from their perspective.
Another thing is the risk assessment. If you are going to switch to a risk assessment tool, how good is it, and how accurate can we be with that? Ultimately, if it is not money that gets someone to show up in court, then the question is what kind of system would motivate people to make their court appearances.
A lot of focus has been put on people who are in jail waiting for trial because they can’t afford bail, and I am sympathetic to that as a district attorney. What I think most people don’t consider is that a defendant failing to appear in court not only poses a danger to the community and law enforcement in finding and detaining them again, but it also costs taxpayer’s money.
It is a complicated problem to get people who often, but not always, don’t respect the rules or the laws to abide by the rules and show up when they are expected. From my perspective as the district attorney, the question is how to keep the community safe from someone who has been accused of a crime, but not yet convicted.
I believe everybody has a right to a trial and is presumed innocent and that is important. The difficulty is developing a bail system that keeps everyone safe and protects individual rights.
A common fear when we talk about reforming anything under the law is that in an effort to make positive change, something or someone is going to fall through the cracks resulting in someone getting hurt. Reform is difficult.
Smith County Sheriff Larry Smith shared Commissioner Hampton’s concerns about repeat offenders. “One of the barriers to bail reform here is that 90% plus of the inmates in our jail today are repeat offenders,” he said. Being a repeat offender increases the likelihood of a higher bail and possible pretrial detention.
Regarding bail reforms implemented in Harris County and ongoing litigation in Dallas County, Smith does not want “to follow in their footsteps.” There has been mixed and incomplete reporting as to the efficacy of implemented changes in these counties.
Bail reform: Where does Smith County go from here?
Commissioner Hampton, Judge Kent, District Attorney Putman and Sheriff Smith express a shared understanding that bail reform is difficult and that the issue is not going away. All, with the exception of Judge Kent, are members of our Smith County Criminal Justice Coordinating Committee.
In 2017 in his State of the Judiciary address, Texas Supreme Court Chief Justice Nathan Hecht shared his concerns with regard to 75% of all those locked in Texas county jails were being held before trial and many not because they were dangerous, but because they were too poor to make bail.
Hecht said, “Though presumed innocent, they lose their jobs, families and are more likely to reoffend. And if this weren’t all bad enough, taxpayers must shoulder the cost: a staggering $1 billion a year.”
Lawmakers applauded Hecht’s pronouncement that “Liberty and common sense demand this reform,” yet bail reform legislation failed in both the 2017 and the 2019 Texas legislative sessions – a testament to the difficulty of reform.
The research and data analysis of the last decade – much of it cited in this story along with part one and part two of this series, as well as the current litigation and the looming threats of future litigation – point to the undeniable reality that our current cash bail system is flawed, if not completely broken. How do we fix it?
Commissioner Hampton expresses her concern that bail reform in Smith County will probably not happen until “we end up being sued” like Harris and Dallas County have experienced.
Let’s hope that we can avoid going down the road of litigation consuming possibly years of time and millions of dollars. With multiple members of our Criminal Justice Coordinating Committee having expressed concerns with bail issues, it is time for proactive steps to address those concerns.
We can hope that our county officials will listen to concerns, invite ideas for change, assess the appropriateness of possible changes and pilot those most feasible. Smith County just might be the county to proactively establish meaningful bail reform and be a beacon for others to follow.
Brenda McWilliams is retired after nearly 40 years in education and counseling. When not traveling she fills her days with community, charitable, and civic work; photography; writing and blogging at Pilgrim Seeker Heretic; reading, babysitting grandchildren, and visiting with friends. She enjoys walking at Rose Rudman or hiking at Tyler State Park. Brenda and her spouse, Lou Anne Smoot, the author of Out: A Courageous Woman’s Journey, have six children and seven grandchildren between them.
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