In the old west, a Texas rancher would brand all of his cattle so that they could be identified if a question of ownership arose. Over the past couple of decades, the Texas judicial system has seen the rise of a different kind of branding: the overloading of defendants with conditions under which they must comply – some at great expense – after they are released on bond. In effect, these individuals are stigmatised before they have even been found guilty of a crime.
Four years ago, the commonly-heard mantra was that criminal justice reform was needed because the existing system was unconstitutional. After various courts determined this to be a false claim, the refrain changed to one of fairness. Now, as crime continues to rise across the United States, law enforcement is pointing to these bad bail reform practices that have effectively tied the hands of judges and allowed crime to increase without defendants being held accountable.
In its most recent legislative session, Texas passed a major criminal justice reform bill – Senate Bill 6 – that addressed bail with a renewed focus on accountability. In the state, courts set the amount of bail and then impose any mandatory or discretionary conditions to which a defendant must comply after release on bond to ensure public safety or the safety of the victim. A portion of Senate Bill 6 sought to address the overuse of conditions placed upon a defendant after they are released on bond. Notably, it called for courts to apply “the least restrictive conditions” to a defendant after release.
History Of “Least Restrictive Condition” Language
Reference to “least restrictive conditions” can be traced to the Federal Bail Reform Act Of 1984 wherein judges use a release or detain approach. The statute sets out a laundry list of possible conditions that may be imposed upon a defendant’s release.
In the years since the passage of the Bail Reform Act, the federal system on average detains more than 70% of defendants arrested.
Since states are charged with prosecuting a far greater number of crimes, this high detention rate would not be practical or cost-effective in state jurisdictions because of the certainty that severe jail overcrowding would result.
The Growing Use Of Conditions Of Release In Texas
Texas is not a release/detain jurisdiction. Only certain crimes set forth in the state’s Constitution authorises a trial court to deny bail and its Code of Criminal Procedure requires trial courts to set an amount of bail unless it is denied pursuant to the constitution. Therefore, a trial court establishes a bail amount to ensure appearance.
In the late 1980s, Texas began authorising trial courts to set certain conditions with which a defendant must comply after being released on bond. Many of these conditions are imposed at a defendant’s expense; some conditions are permissive, while others are mandatory.
In 1989, the State Legislature authorised a trial court to impose home curfew and electronic monitoring upon a defendant released on a personal bond. Four years later, it mandated certain conditions for defendants released on bond who had been charged with “stalking.” It then added a requirement for motor vehicles to have ignition interlock devices installed as a condition after release on bond for certain intoxication crimes. In 1999, trial courts were granted general authority to impose conditions upon a defendant after their release on bond, related to the safety of the victim and the community. Home curfew, electronic monitoring and drug testing were expanded subsequently to be used on any type of bond.
In 2001, advances in forensic technology led to Texas courts being authorised to require certain defendants to provide a specimen for the purpose of creating a DNA record. Over the next two decades, possible conditions were expanded, first to include offences involving family violence, then later to defendants charged with certain trafficking or prostitution-related offences.
Accordingly, when a defendant is released from jail awaiting trial or entering a plea, they face a seemingly infinite laundry list of conditions under which they must comply with after being freed on bond. Depending on the charge, some of the conditions may be discretionary, while others may be mandatory.
Under Senate Bill 6, a magistrate is required to set an amount of bond not more than 48 hours after a defendant is arrested. Additionally, the court is authorised and required in some situations to impose conditions on the defendant’s release. In setting these conditions the judge must now “impose the least restrictive conditions, if any, to protect the safety of the community, law enforcement, and the victim of the alleged offence.”
The amount of bail is set pursuant to factors set forth in article 17.15 of the Texas Code of Criminal Procedure. Conditions applied to a defendant after release on bond now must adhere to this new standard of “least restrictive conditions, if any.” This language is meant to make clear that these conditions are in addition to and separate and apart from any cash amount or type of bond required. This language was also intended to stop the practice of placing numerous and materially restrictive conditions of release upon an accused as additional conditions of release, some of which come at great expense to defendants, both monetarily and as a constraint upon personal freedom. This interpretation of the new language is underscored because Senate Bill 6 also requires that any condition of release must be set forth in an order from a trial court and notice given to certain parties.
Senate Bill 6 represents a new direction for criminal justice reform in Texas. It is based upon accountability, while also seeking to end the practice of overloading defendants with unnecessary conditions of release. Such conditions have had the effect of branding these individuals as guilty before they have even been tried by a jury.
This legislation rejects earlier reforms that have tied the hands of judges and often allowed career criminals to take advantage of the criminal justice system. There is reason to believe that Senate Bill 6 may represent the path for truly successful criminal justice reform moving forward, both in Texas and across the US.
About the author: Ken W. Good is the Board of Directors, Professional Bondsmen of Texas. He graduated from Hardin Simmons University in 1982 with a Bachelor of Arts Degree. He received a Master of Education Degree in 1986 from Tarleton State University, a part of the Texas A&M System. In 1989, he received his law degree from Texas Tech School of Law, where he was a member of the Texas Tech Law Review. Mr Good has argued cases before the Supreme Court of Texas and the Texas Court of Criminal Appeals, along with numerous courts of appeals, including the United States Court of Appeals for the Fifth Circuit. He is the author of “Good’s on Bail“, a practice guide created for bail industry professionals. In addition, he has written numerous articles on the subject of bail reform, including, “What Successful Bail Reform Looks Like.” Mr Good is married and has two daughters.