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Opinion

Three years after federal lawsuit, how is bail set for Dallas arrestees?

Judges are getting more information about defendants, but we still don’t know whether a key reform is working.

This editorial is part of our State of the City project, in which The Dallas Morning News explores the most critical issues facing our communities. The first series focuses on public safety.

In December, as Dallas emerged from a year with the highest number of homicides in more than a decade, the City Council Public Safety Committee stirred with questions.

Dallas police had arrested hundreds of violent crime suspects in a series of warrant roundups, part of a plan to quell a spike in violence. But police charts showed that a quarter to more than half of the suspects in each roundup throughout 2020 had bonded out of the Dallas County jail within a month of arrest. Council members wanted to know why, turning their attention to the magistrate judges who conduct bail hearings at the county jail.

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The magistrate judges collectively make thousands of bail decisions every month. More than 100 people on average are booked at the county jail daily, most of them arrestees of the Dallas Police Department.

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A warrant roundup in late February of this year offers a snapshot of how people accused of violent crimes move through the criminal justice system. Of eight suspects arrested by Dallas officers, five had posted bond as of this writing, with bail amounts ranging from $1,000 to $100,000. Among those five, one had a pending misdemeanor case for fleeing the scene of an accident, another appeared to have only traffic tickets in his record, another had no adult criminal history in Texas that we could find, and another had a long rap sheet. This fourth suspect, a registered sex offender assigned $100,000 bail for domestic violence and stalking charges, was released and placed under house arrest with an ankle monitor. He was booked into the Dallas County jail again a month later after he appeared to violate conditions of his release.

A fifth suspect in that group faced a felony drug offense in Dallas with bail set at $10,000. He was transferred to Tarrant County, where he had pending cases for felony assault and unlawful possession of a firearm with bail totaling $11,500. Records show the man bonded out and was rearrested 12 days later in Lubbock County on a felony drug charge.

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The sole murder suspect in the warrant roundup, with other serious crimes on his record, remains in jail. His bail was originally set at $500,000, was lowered to $300,000 and was then pegged at $1 million after prosecutors requested that his bail be raised.

Our takeaway from doing a deep dive into this issue is that it is nearly impossible to draw conclusions about Dallas County’s bail system from even the detailed work of a warrant list. The list only reinforces an argument that this paper has made before: Authorities don’t have enough data to show where the cracks are in our criminal justice system so they can fix them.

We’re revisiting Dallas County’s bail system because it has long been an enigma to the public and even to local government officials. The initial bail hearings underwent changes after a federal judge found in 2018 that the county’s reliance on predetermined schedules to set bail was unfair to some defendants stuck in jail because they couldn’t afford to post bond, generally 10% of the bail amount.

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The changes in Dallas County were designed to give judges more information to make bail decisions. But we don’t know yet whether a key reform is working. The county is still collecting data that will tell whether a risk-assessment tool it rolled out in late 2019 is correctly predicting the likelihood that defendants will skip court dates or commit an offense if released.

We support efforts to give judges more information. But information-gathering practices and the quality of the information provided to judges also warrant scrutiny to ensure courts are making the best decisions they can. While bail-setting is only one stage of the criminal justice system, it needs more safeguards for the sake of the accused and the communities where they live.

Who gets bail

In Texas, most suspects are entitled to bail. The exceptions are people charged with capital murder and others accused of certain violent or sexual offenses, but only under very narrow circumstances.

State law bans the use of bail as “an instrument of oppression,” though it must be high enough to reasonably assure the suspect’s return to court. Judges must consider the nature and circumstances of the offense, the suspect’s ability to make bail and the safety of the victim and the community.

“The public thinks the judges are choosing to let people out, violent people who are then committing new offenses. And the fact is that judges have no choice,” said David Slayton, administrative director of the Texas Office of Court Administration. “The [state] constitution tells them what to do, which is you have to set bail.”

What, then, is the right amount of bail? Texas appeals courts have ruled $500,000 and $1 million bail amounts excessive in some cases involving people accused of capital murder and child abuse.

For wealthy suspects, however, those amounts may hardly be an obstacle.

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“There’s no magic formula that’s going to ensure that every single person who is arrested doesn’t get out and commit some type of new offense, whether major or minor offense,” Dallas County District Attorney John Creuzot, a former judge, told City Council members last year.

In response to a 2018 federal lawsuit, a judge ordered Dallas County to stop using fixed bail amounts without considering alternatives that would allow suspects to be released from jail. County officials hired more pretrial services staff to help defendants fill out financial affidavits and to score arrestees using a risk-assessment tool. The algorithm predicts the risk of the defendant skipping court and committing a crime if freed, and the resulting computer-generated scores are matched with recommended levels of pretrial supervision.

All this information, along with the probable cause affidavit from police and a criminal history summary, are provided to the magistrate judges to help them decide appropriate bail and release conditions, such as wearing an ankle monitor.

“The difficulty is that we’re trying to predict human behavior,” said Assistant County Administrator Gordon Hikel.

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The risk-assessment tool is Arnold Ventures’ Public Safety Assessment, or PSA, which county pretrial services personnel have been using to score defendants since December 2019. The tool takes into account nine factors, including prior convictions and pending charges.

Risk-assessment tools have gained traction across the country and must be handled carefully as some critics worry the tools can reinforce racial disparities in the criminal justice system. A Texas bill backed by Gov. Greg Abbott would create a statewide risk-assessment tool for judges to consider when setting bail.

Hikel told us the county is in the process of studying the accuracy of the PSA’s predictions regarding its pretrial population, whose outcomes the county is tracking from bail hearing to case disposition. This “validation” process usually takes 18 to 24 months, but Hikel said the pandemic presented a complication because it delayed defendants’ court hearings.

The PSA scores do not override judge discretion, and no law or federal court order requires Dallas County judges to use them. A change from past practice is that county magistrate judges now publicly document the reasons for their bail decisions, such as “Facts of the Offense” and “Public Safety Assessment Score.” But the scores themselves are not part of the public court file, and the magistrate judges do not share those scores during the bail hearings, which are televised in the noisy county jail lobby.

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Last fall, this paper detailed the case of Jerry Ford, who is accused of killing his girlfriend, Nicole McChriston, on Sept. 4. Ford had been jailed in July in Dallas County after police alleged that he struck McChriston and swung a machete at her. A magistrate judge in that case cited Ford’s PSA scores, his criminal history and the safety of the victim in setting bail totaling $35,000 for two assault charges. Ford was considered an indigent defendant and bonded out after a month in jail, according to court documents.

Public records show Ford was handed two misdemeanor assault citations in Dallas in early 2020 and two family violence convictions in Smith County in 2006 and 2009. We don’t know what Ford scored on the PSA tool or how his previous cases were entered into his file for the bail hearing. In response to an open-records request, the county replied that PSA scores and criminal histories compiled from law enforcement databases are confidential records.

Balancing act

County officials emphasize that PSA scores are only one layer of information that magistrate judges may consider. We wanted to know how Dallas County magistrates weigh the information presented to them, but Chief Magistrate Judge Steven Autry politely declined an interview with us, citing the bail lawsuit still wending its way through federal courts.

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We turned to cities in Dallas County for insight into bail-setting practices elsewhere. A majority of these cities have their own detention facilities that handle initial bail hearings for local arrestees. Irving stood out because it televises its hearings in a room dedicated for public viewing. Many cities close bail hearings to the public.

Irving Presiding Municipal Judge Rodney Adams told us he reviews a confidential financial affidavit, the probable cause affidavit and the suspect’s criminal history. Checking a person’s record before making a bail decision may seem obvious, but Texas law does not require it.

“What is the condition of that particular defendant? Were they just convicted of something? Are they an escapee? Are they currently on bail or some type of disposition like parole or probation?” Adams said. “We’re scouring that record to find what else might step out that might affect our ability to consider whether the defendant might be eligible for a personal [unsecured] bond, and if so, what other conditions of bail should we be setting along with that.”

Les Moore, legal adviser for Irving police, told us the city is largely at the mercy of the quality of information entered by other jurisdictions in crime databases. He said some fail to post conviction information or other details.

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Still, Adams said, sometimes Irving judges dig for a little more information from the defendant.

“We’re not asking them for any information regarding the case at hand, but we would ask them, do you know when you were last arrested? When was the last time you pursued any [social] services?” the judge said.

Dallas County magistrates often see more than a dozen defendants at once, rather than two or three at a time. Having a prosecutor and a public defender at the initial county bail hearings — a proposal that has the backing of county leaders, Creuzot and Chief Public Defender Lynn Richardson — would generate details about a defendant that may not appear on county forms, such as a suspect’s family ties or his or her performance while on parole or probation for other offenses. These are crucial details that can lead to better bail decisions, but officials say this initiative never got off the ground because of an impasse over some judges’ concerns about appointing only public defenders and not private attorneys to the bail hearings. The prospect of allowing private attorneys deep into the jail in turn sparked concerns about security risks.

Under the federal court order, Dallas County defendants are entitled to an adversarial bail review hearing in front of a felony or misdemeanor judge after the initial bail setting. But prosecutors say the execution of this provision has been uneven because of judges’ varying legal interpretations.

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Having prosecutors and defense attorneys involved in the initial bail hearing is clearly the ideal scenario — both for the defendant and for the judge deliberating conditions of release.

We urge the county to resume exploring options to bring legal representation to the initial bail hearing or to look for other ways to fill information gaps about the defendants. It should also review data input and the training for pretrial staff and judges if it’s not already doing so as part of its risk-assessment study.

More gaps

Other layers of the criminal justice system have holes in them, too.

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Dallas County courts and others still must go fishing for information about inmates in several computer programs that don’t talk to each other. The county is currently reviewing options for new software.

Creuzot, who was sworn as DA in 2019, said his own office has a data problem. Big-picture data-tracking efforts were limited to a few variables about each case, such as the case number, the name of the defendant, the prosecutor and the outcome of the case. Now Creuzot and his staff are working with the county’s IT department to develop a system that records more fields, such as the race of the defendant, the ZIP code of the offense and the ZIP code where the defendant lives. That information will help the office audit its own outcomes and guide policy.

“For example, if we have sex assaults coming from one particular area of town, we know to focus on that, that that’s a problem,” Creuzot told us. “We can work with the police. It may straddle two police departments. ...If we see it, we can pull them together.”

Dallas Police Chief Eddie García has indicated his commitment to data-driven strategies, and we hope he will boost efforts to gather metrics that could help his officers and prosecutors fight crime by preventing it.

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The criminal justice system is a tangle of competing interests and complicated narratives. It is, rightly, an adversarial system that helps us get at the truth by ensuring that both sides can make their case and that both sides can challenge the other on the facts. A fair system balances the rights of the accused with the need for public safety, and that tension is an important one. But unless we gather more reliable information, our system will do a poor job of protecting defendants from undue hardship and communities from crime.

It would benefit us all to have data that can tell us which criminal justice policies are working, and which aren’t. Our leaders must make the investments that will give us those answers.