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Tarrant County Officials Say New Bail Reform Won’t Be ‘Racially-Biased’

Criminal justice reform efforts, including bail reform, have been growing around the country.  

Tarrant County is joining the effort by adopting a new system measuring the risk posed by accused criminals and whether they should be released on bail. 

The public safety assessment (PSA) is a tool that “provides judges with objective information in bond setting,” Criminal District Court Judge Mollie Westfall (R) told the Tarrant County Commissioners in her presentation this week. 

The PSA takes several factors like documented criminal history and age into account in determining the likelihood that the defendant will fail to appear or will commit a new crime while out on bond. It does not consider race, gender, education level, employment status, mental illness, or substance abuse.

“The PSA does not discriminate. There is no evidence that it is racially-biased or gender-biased. It helps the judge make a data-driven decision about the amount and conditions that will be included in the bond,” Westfall added.

“This is not bail reform; it’s part of an ongoing process,” Westfall told the commissioners court. However, the PSA falls under the bail reform category of the website of Arnold Ventures, the non-profit policy group that developed the PSA. 

Westfall emphasized that the PSA does not assign bail, but is one factor to take into account by judges and magistrates in setting bail. The courts currently use a static risk assessment, Westfall said, but added that she believes the PSA is “a much better-researched tool.”

Defense attorneys and prosecutors can bring additional information for the judge to consider in setting bail and supervision conditions. Additionally, the defendant provides financial information for consideration as required by the Texas Code of Criminal Procedure Article 17.15.

The public safety assessment system will be evaluated three times over the next three years by the Justice Management Institute (JMI), the organization contracted with Tarrant County to help implement the system. JMI’s website banner advertises its “Resources to Advance Racial Equity.” 

The PSA was developed by Arnold Ventures, a non-profit policy group founded by Houston billionaires Laura and John Arnold. Arnold Ventures works in several policy areas, including criminal justice reform about which its website says, “We must reform every aspect of the pretrial system—from policing to bail; prosecution to public defense—to ensure that every person who has contact with the justice system is afforded equal treatment under the law. We support policies that decarcerate, protect individuals’ constitutional rights, advance community safety, and promote racial justice.”

In developing the PSA, Arnold Ventures claims it has analyzed 750,000 cases nationwide to determine the factors most pertinent to bond setting. Those factors create a score based on risk of failure to appear, new criminal activity, and new violent criminal activity. The lower the score, the less risk a defendant is.

In anticipation of the objection that the PSA may be soft on crime, Westfall asserted that it “helps us be smart on crime,” adding that “we want people who are low-risk to be out and as free as possible and high-risk people to be monitored carefully.” 

Thirty-eight jurisdictions across the country have implemented PSA, including Dallas and Harris counties. Houston has seen a rise in crime due to its lenient bond policies. 

Commissioner Roy Charles Brooks (D-Pct. 1) praised the use of the PSA, which he has been advocating for several years.

“I applaud this effort and am encouraged that we are moving to a data-based assessment system. I recognize that no assessment system is perfect; it does not consider over-policing in communities of color that would cause certain defendants to accumulate more points,” Brooks said.

Westfall pointed the county commissioners to a pertinent decision in December by the U.S. Court of Appeals for the Fifth Circuit in Daves v Dallas County, which reiterated that a bail schedule is never the proper way to set bail for a defendant. 

“Under the Equal Protection Clause as applied in the Fifth Circuit, pretrial detention of indigent defendants who cannot pay a financial condition of release is permissible only if a court finds, based on evidence and in a reasoned opinion, either that the defendant is not indigent and is refusing to pay in bad faith, or that no less restrictive alternative can reasonably meet the government’s compelling interest.” 

Daves and his fellow plaintiffs in the civil rights case are indigent defendants who assert that they were deprived of due process and equal protection because they were denied release based on their inability to provide the required cash bail. 

The district court granted an injunction forbidding “prescheduled bail amounts as a condition of release on arrestees who attest that they cannot afford such amounts without providing adequate process for ensuring there is individual consideration.” The Fifth Circuit upheld the injunction.

It also held that criminal district court judges are not proper defendants in the case because of the doctrine of sovereign immunity. County officials and judges are not immune, however.

Tarrant County’s PSA is expected to be fully implemented by March 2021.

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