Finally, representation at bail hearings for the poor
Beginning Oct. 1, indigent defendants in Bexar County will receive attorney representation at their bail hearings.
This is a big deal — but only if done correctly. Representation at these critical hearings should ensure people accused of nonviolent crimes do not languish in jail simply because they cannot afford an attorney or cash bail.
Instead of sitting in the Bexar County Adult Detention Center at a taxpayer expense of $50 a day, many indigent defendants — particularly those accused of nonviolent crimes — can remain employed, if they have a job. They can remain with their families and loved ones. They can begin pretrial diversions and be referred to treatment for mental health and substance abuse issues or be directed to potential housing.
They can assert their constitutional right of presumption of innocence instead of trading it in with a guilty plea at jail court simply to secure their liberty.
It’s all about fairness, and the uncomfortable truth about the criminal justice system in Bexar County, and many other jurisdictions, is that wealthier defendants can retain immediate representation and secure bail, but the poor cannot. This order is a necessary first step in addressing that disparity.
“To me, it’s ensuring that rights are recognized,” District Judge Ron Rangel said. “Part of their rights is to have a bail that for them is affordable.”
The order appoints the Bexar County Public Defender’s Office to represent all indigent defendants who do not already have attorneys at their initial bail hearings. The focus is solely bond. After this, defendants will be appointed counsel.
Numerous studies have shown that meaningful representation at these hearings greatly enhances the pretrial release of defendants charged with nonviolent or misdemeanor offenses.
“People are less likely to be unnecessarily detained pretrial when represented by counsel at their bail hearing,” Mary Schmid Mergler of Texas Appleseed, a nonprofit dedicated to addressing social inequality, wrote in an email. “Since unnecessary pretrial detention is associated with worse outcomes in terms of convictions and sentencing, representation at bail hearings is one way to reduce the likelihood that money will dictate the outcome of criminal cases in Bexar County.”
But the representation has to be meaningful. What does that mean?
It means the public defenders will need enough time before these hearings to conduct thorough reviews. This entails speaking with the defendant, contacting family members and learning about employment.
It means the public defender’s office has adequate staff to represent defendants at two sites since the city of San Antonio and Bexar County will soon be conducting their own magistration hearings.
It also means ensuring all bail hearings are open to the public (a point we noted in Friday’s editorial). This is no small point. It’s the second recommendation in The Constitution Project’s 2015 report, “Don’t I need a lawyer?”
“The first appearance hearing should be held in public and should provide the opportunity for defense counsel, pretrial release services representatives and family members to present information supporting the least onerous pretrial conditions appropriate,” the report says.
It means rethinking the risk-assessment tool the county uses. Numerous experts have praised the Laura and John Arnold Foundation risk-assessment tool, which is based on 1.5 million cases across 300 jurisdictions.
And, finally, it screams for significantly more oversight of the court-appointed attorneys who will take these cases. Bexar County is not monitoring caseloads or outcomes and relies on a voucher system that rewards attorneys for quick plea deals. In Sunday’s editorial, we outline why Bexar County needs to formally study the system to make changes.
Indigent defendants make up about 67 percent of all cases in Bexar County’s criminal justice system, according to state data. In fiscal 2017, that was about 40,000 cases.
Representation at these bail hearings is a crucial first step to bring fairness to the system, but it will only be as transformative as the reforms that follow.
This editorial is part of the Unequal Justice series, which explores the inequities in Bexar County’s criminal justice system and how they can be fixed.