The Austin American Statesman published an article on February 5 about bail bond reform in Texas describing the two bills that would apply an “Automated Pretrial Risk Assessment” to deciding who should be released from jail on Personal Recognizance Bond and who should not. In Austin we have been using an evidence based approach for years to evaluate whether a defendant will return for court and follow the conditions of bond during pretrial release. In criminal cases Judges have the final say as to setting bail and releasing an arrestee on bond. An evidence based approach can be a helpful tool to assess the amount of bail and the risk factors for release on personal bond. Some factors that assessments can take up are criminal history including the length and recency of a prior sentence, the seriousness and number of prior arrests, the defendant’s employment status, education, family support, residency, and age.
Despite it’s great potential as an equalizer — treating similarly situated individuals the same way every time — an evidence based approach is a starting point and not a substitute for evaluating the unique characteristics of a particular defendant’s case. Predicting whether someone will commit a crime in the future or be successful while out of jail on bond is difficult and science has not brought us an accurate way to predict future outcomes. Evidence based assessments should avoid discriminatory release patterns. Any set of criteria used to evaluate the likelihood of bond compliance has its own set of moral judgments. The role of the defense lawyer is to give the judge helpful information in order to make the right decision. Prior criminal history is certainly a factor but priors can be due to a variety of circumstances that do not always predict future behavior. Worse, some research shows that prior criminal history may be used to treat some people of color worse than whites. Going forward, it will be important to review all the research and past experiences of other states that attempted similar evidence based assessments.Austin Criminal Defense lawyer