Walking on Bail Tightrope

arraignment-cartoonAbout ten years ago, it was substantially easier to get through a setting at the criminal courthouse. The majority of times a client will need to reset his case. I never do anything on a case until I know substantially more than the prosecution does about the facts of the allegation, and this requires an abundant amount of discovery, both internal and external. This takes time. So the case is often reset for this process to take place. Ultimately, the case reaches a boiling point where resolution is dictated, but it will take a while.

This used to trouble clients, who wanted quick resolution of their cases. An innocent client doesn’t quite understand why the whole world doesn’t see what he and I see. I often use the refrain, “Only God knows everything. Man is fallible. This includes prosecutors”. Now clients are much more educated about the system; even the newbies.

So most early case settings require resets and a new date to discuss the case with the prosecutor is given. You would think this would take very little time. After all, how long could it take to fill out and sign a reset? However,  it is now a convoluted process and has become a dangerous time for an individual accused of a crime. This is a result of what I consider an abuse of the bail system.

An accused citizen is presumed innocent and has a right to bail, under both the Texas and U.S. Constitutions. The purpose of bail is supposed to be security given by the accused that he will appear and answer before the court. It is not supposed to be punishment for a crime. However, Judges have been attaching conditions to bail under the authority of the Texas Code of Criminal Procedure that have subjected many accused persons to unreasonable danger. Examples of this abuse include no-contact orders, drug testing and pretrial supervision.

A no-contact order is a broad reaching and burdensome bail condition when it involves a current spouse or family member. This is especially true when the couple have children. Many Judges issue this proclamation as a habit, without actually investigating the circumstances of the prosecutions request. It seems like every day someone calls me because they are restricted from seeing their spouse. Or the converse happens; the alleged victim or witness calls me to ask why they can’t see their accused loved one. I see the same problem occur when a prosecutor asks for an Emergency Protective Order. On many occasions, there is simply nothing in the offense report or her notes that justify the request. Without rapid action by a Criminal Law Attorney, it may be months before an accused is reunited with his family.

I’m dealing with drug testing conditions on a daily basis as well. It seems like for some Judges, drug testing is their sword of justice. No matter the crime, drug testing is a possible condition, and it often comes as a surprise to the individual sitting in court waiting for his case to be reset. I’ve been around long enough to know where the danger courts are, and am careful to warn clients of the possibility, but that is clearly not the case for many lawyers. The shock on their client’s faces when they are told that they have to walk down the street and pee into a cup is a little sad.

It’s also unfair. I don’t want to minimize the danger of using illegal drugs, but…. well actually I DO want to minimize the danger! Point of fact: I have never had a client who uses marijuana on a regular basis miss a court date because he was too stoned the night before! (On the other hand, I have had someone too hung over to come in!) If drug use is a factor in assuring that an individual comes to court, then why not focus on the bigger picture? Shouldn’t a judge stipulate that a defendant have an automobile in good working condition as a condition of bail? Or what about the physically infirm? I just don’t see the connection with drugs, and it appears to me to be a gotcha.

Years ago, the pretrial agency was used solely to administer pretrial personal bonds, bail without surety and based on personal recognizance. Personal bonds seem to have gone the way of the DoDo bird, since most Judges don’t seem to think anyone has lived a good enough life to deserve one. Now the pretrial agencies are used for administering to defendants that the Judges want to screw with, and this includes drug testing. So not only is a presumed innocent civilian forced to pay a bondsman to get out of jail, he also has to adhere to any number of conditions that a pretrial agency is directed to administer. I tell you, I’m beginning to believe that some Judges just want the defendants to fail.

So how does this prolong a simple reset? Because no defendant is presumed free of these conditions, and inevitably they must sit around and wait to see if they have chosen the black bean. Either they have to approach the bench and be lectured about what the Judge expects from them, or have to wait for the probation officer to call them up to attach their conditions. And heaven knows I’m not going to leave my clients while this process takes place. I can’t protect them if I am sitting in the office. So what took ten minutes ten years ago, now requires most of the morning.

And the result? I don’t have statistics, but I do have an opinion based on anecdotal observations. The same number of people are showing up to court as they did twenty years ago. The difference is substantially more bonds are being forfeited and more people are sitting in jail. Do you think this has anything to do with the overcrowding at the Harris County Jail? And is this why there was an administrative change in good time credit at the jail? So is this why people convicted of crimes are doing less time on their sentences? And is this good for the community? You do the math.

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