Ken W. Good

Ken W. Good

For better or worse, catastrophes offer opportunities one would never have under normal circumstances. Or as politician Rahm Emanuel often says, “Never let a good crisis go to waste.” This concept has been implemented during the COVID-19 pandemic, as bail reform advocates push for the release of large numbers of the jail population on the grounds of compassion.

Over the last month, reformers have bullied elected officials with threats of litigation unless their demands for large-scale release were met. Advocates have even taken the offensive, asking federal courts to order the release of inmates through the filing of lawsuits. But their urgency may well be misplaced. According to a recent Reuter’s story, 96 percent of the inmate population that tested positive for the coronavirus in Arkansas, North Carolina, Ohio and Virginia jails showed no symptoms.

The COVID-19 crisis cannot be treated as some sort of “get-out-of-jail-free card.” Our officials have made strategic errors in dealing with the situation. While large numbers of inmates have been released from jail, simultaneously, it has been announced that during this period arrests will not be made for certain crimes, such as burglary and vehicle break-ins. This has created a situation in which defendants know the specific crimes they can commit but will not be arrested or held.

It should be no surprise that we are seeing an increase in crime, with domestic violence cases showing a particular spike.

In developing these policies, our elected officials did not think through the consequences of their decisions. For example, how are we to get defendants back into the system when it is time to address their cases? History shows that simply releasing people carries a failure-to-appear rate of at least 50 percent. When courts resume in June, that rate will undoubtedly grow even higher. Failures-to-appear will slow down the system as cases are put on hold until defendants return.

Instead of adopting misguided and shortsighted procedures, what is needed are policies using proven means that have been effective in getting defendants to show up for court. Some counties use a bail schedule, a list of criminal charges and the dollar amount needed to be posted as a condition of release. Those that do should, on a temporary basis, lower them during this time. Counties that do not should set up a temporary bail schedule to encourage defendants to post a private surety bond to avoid contact with the jail. Records show that individuals on these types of bonds have a 400 percent greater chance of appearing for court.

For those who are arrested, rather than simply releasing them outright, it would be preferable to set them free, with instructions to obtain a surety bond, which they would bring to jail. The court would be no worse off if the defendant failed to return, while the surety bond would serve as an incentive to appearance in the future.

Our criminal justice system must improve on being able to keep track of who is in jail and how long they have been incarcerated preconviction. We’ve all heard stories in the news about individuals who have been lost in the jail system. Also, we must get better and faster at assessing mental health and drug issues which plague a significant percentage of defendants moving through the criminal justice system.

Finally, there needs to be accountability. When an individual, who has been freed from jail on grounds of compassion, is re-arrested on new charges, the time for compassion should end.

Especially during these difficult times, our elected officials should be making decisions based not on threats from single-minded advocates, but upon reason and facts.

While the COVID-19 crisis looms large now, society will be best served if they think long and hard about the lasting consequences of their actions.

Ken W. Good is a member of the Board of Directors of the Professional Bondsmen of Texas.