November 14 2018
The ACLU of Texas is suing Galveston county and it is not going well for the ACLU. The County, wisely, made a few simple changes to its bail system in line with what noted bail lawyer Ken Good, Esq. recommended
some months ago. Now that it is clear that the ACLU isn't going to get some sweeping order in its first bail case filed in Texas, it needs to now look elsewhere to keep its politically motivated litigation machine going.
Thus, Trish Trigilio, Senior Staff Attorney at the ACLU of Texas, is sending letters to county officials throughout Texas purporting to "partner" with counties in their bail reform efforts. This is nothing more than a thinly-veiled threat of litigation because each letter is instead a request of open public records in order to discover bail policies the ACLU doesn't agree with in order to set up new litigation against county officials. As we have said time and time again, complying with the Fifth Circuit order is quite simple, and doesn't change much. But, it needs to be done. And done now.
Frankly, don't take the bait—Ms. Trigilio grossly misrepresents the Fifth Circuit opinion. Instead, the opinion says that local officials can continue to rely upon a bail schedule and financial conditions of bail, as long as there is review of bail set by a bail schedule within a meaningful time. Ms. Trigilio also fails to mention the Fifth Circuit opinion requires the filing of an affidavit of indigency, something she will probably fail to mention in her new partnership with you.
This is nothing more than a Hail Mary to put the paddles on the "Third Generation of Bail Reform" in America, a self-titled movement that began a decade ago and is now wilting like flowers in the hot Texas sun.
First it was all the rage for a decade to use pretrial risk assessments—now the ACLU is calling for an end to pretrial risk assessments, joining 109 other civil rights groups
including the NAACP, due largely to concerns of racial bias. The ACLU is also now against preventative detention policies (i.e., eliminating the right to bail), policies for which it advocated during the last legislative session because we needed to protect people from dangerous offenders by locking them up and throwing away the key. Then it was widespread expansion of pre-conviction probation, which many national civil rights groups are now against because it erodes the presumption of innocence and often amounts to pre-conviction punishment.
Further, while it is always argued that someone staying in jail costs money, what the ACLU does not tell you is that it costs the local governments millions of dollars in Texas when persons fail to appear for court and are not returned, and it costs victims of crimes millions of dollars when they have new crimes committed against them while on bail. In fact, one study in Dallas County found that each time a defendant failed to appear, that cost the county $1,775. If the ACLU were to conduct a true benefit-cost analysis, they would be surprised to find out that bail and bail agents work.
To add to the deception, the ACLU argues that financial bail does nothing to guarantee appearance. This argument is flawed for two reasons. One, the ACLU relies primarily on research from Claire Booker and Mike Jones. That research was never peer-reviewed, and in fact, the data proved just the opposite when Booker and Jones's system was implemented in Jefferson County, Colorado—failures to appear went up dramatically, and the number of persons spending more than one night in jail increased by 142%. For this reason, the District Attorney, Sheriff, and County Commissioners
moved the system back to the use of bail because it was more effective.
Said District Attorney Peter Weir...
"The program did not work as intended. We did not save budget dollars. The system suffers from a lack of accountability. The District Attorney's office originally had significant objections and concerns for public safety due to the bail reform initiative and those objections and concerns persist."
"The use of financial bail, including the use of commercial sureties, has been reintroduced into the system. We believe accountability has improved and as a system we are functioning better."
Two, even if the failure to appear rates are similar, nationally recognized peer reviewed research published in the University of Chicago Journal of Law and Economics
from the 75 largest jurisdictions in America shows that the real value of bail is not reduction of failures to appear but remedying the situation when there is a failure to appear. Bail agents, the research showed, were the true "long arms of the law" insofar as they effectively reduced long-term fugitive rates and returned defendants to court.
Instead, local officials should do two things: (1) not panic; and, (2) make simple changes to their bail policies that bring them into compliance with federal law. We are again providing that opinion from noted Texas bail attorney Ken Good – O'Donnell v. Harris County
In addition, we, as a national leader in the bail reform debate, have launched what we have termed the Fourth Generation of Bail Reform in America. We encourage you to read about it here – The Fourth Generation of Bail Reform
. We have spelled out some fairly simple principles that not only protect the right to bail, but respect other constitutional rights in the system and don't rely on selling out the rights of the indigent.
Finally, give us a call—we will bring in a team of local and national experts to present to your county and county officials and diagnose any problems, if any. The ACLU has an endgame, which is to eliminate all pretrial detention and throw the jail doors open. Partnering with the ACLU is like negotiating with the shadow of expensive litigation hanging over your head—after they sued Galveston County, local officials can bet all the ACLU is doing in its "partnership" is simply gathering information from you so they can turn around and sue you. Make simple changes like Galveston County did, follow the lead on our new Fourth Generation of Bail Reform, and tell the ACLU, which is now a partisan, political organization, to go work on something else.
American Bail Coalition
Texas Bail Attorney