Texas: Thoughts On The Preventative Detention Constitutional Amendment, HJR 62
House Joint Resolution 62 proposes “a constitutional amendment authorizing the denial of bail to an accused person if necessary to ensure the person's appearance in court and the safety of the community and the victim of the alleged offense.”
As HJR 62 is to be heard by the House Criminal Jurisprudence Committee, we thought we would give the committee some information to think about as you consider whether the expansion of preventative detention in Texas is a good idea or warranted in the first place.
First, the original draft of the House Joint Resolution was intended to implement the so-called no money bail system. The original draft allows for a prosecutor to request detention for anyone for any crime, including misdemeanors. We don’t think general preventative detention statutes are constitutional, nor do we support them. Since the move to the no money bail system has now been abandoned, now the question is what problem is the amended preventative detention HJR 62 trying to solve? Does it need to be run anymore if judges will retain the power to set monetary bail? We don’t think so.
In fact, we think there is no need to expand preventative detention in Texas, which already has more preventative detention allowed than nearly any state. In fact, 38 states currently do not allow for preventative detention except in capital cases. The other 22, including Texas, allow for denial of bail in certain crimes or circumstances. Texas’s provisions are some of the more expansive in the nation.
Now, it is posited that instead the HJR be amended and that all so-called 3G crimes be included regardless of whether it is the first criminal charge a person has ever faced or not. Yet, Texas has already deviated, starting in 1956, from the original language of the state constitution in Section 11 (which dates to the Massachusetts Constitution of 1641) by adding three categories of exceptions where a person may be denied bail altogether and preventatively detained, Sections 11a, 11b, and 11c. These exceptions already draw a clear line on repeat felony offenders, violent offenders, and those who commit crimes or violate conditions while on bail. Then, in 2005, the voters expanded preventative detention again, this time by allowing it for people charged with family violence offenses who violate their terms of release.
Another expansion of preventative detention then occurred in 2007: allowing for preventative detention if a person, already on bail for a family violence charge, violates the protection order.
In short, Texas has already dealt with this issue over a period of the last 60 years. Each of the exceptions make sense and requires some element of prior criminality or prior failure in order to impose preventative detention.
Importantly, the proponents of this legislation cannot point to what the specific problem it is they are trying to solve. They cannot point to any data that those charged with a particular class of offenses are per se more likely to fail to appear in court or are more likely to commit a new crime while on bail. They have yet, over the two-year history of this movement of preventative detention, to present any data that a particular offender charged with a particular crime is more likely to commit more crimes while on bail or fail to appear in court. This is a significant problem, because the U.S. Supreme Court only allowed for the expansion of preventative detention because Congress had made extensive findings as to the problems of crime while on bail on these specific individuals who had a high rate of committing new crimes while on bail. Said Chief Justice Rehnquist: “Congress specifically found that these individuals are far more likely to be responsible for dangerous acts in the community after arrest.” In short, this is merely a pivot from the original no money bail system to something that seems more reasonable, but such is not evidence of its necessity.
Further, we think the current trend of expanding preventative detention is not a good one. It must be stopped, we believe, otherwise the trend will be to have continuing legislative proposals based on salacious factual cases that will be a slow march to the federal system, which has increased pretrial detention from 24% in 1983 to 73% today.
Next, one of the best articles you can read on this topic is an article entitled Preventative Detention: A Constitutional But Ineffective Means of Fighting Pretrial Crime. This article explains why expansions of preventative detention do not work as a crime control policy despite the push by advocates. The existing bail system is flexible enough to handle this issue, and the idea that rich, repeat violent gangsters get out is contradicted by the existing Texas Constitutional provisions. Anyone who comes in with a hard on crime message of preventative detention can say that they are being hard on crime and all they are doing is protecting the public, but they are not preventing crime and are instead are just being overly harsh on people, some of whom are innocent of the charges.
Further, we think Judge Kearse’s opinion rejecting the constitutionality of preventative detention, later over-turned in Salerno, is worth a read as you consider whether preventative detention should be expanded as a matter of sound public policy. While Texas is allowed to expand preventative detention legally, that doesn’t mean it is good policy, as Judge Kearse said: “The liberty protected under that system [of due process] is premised on the accountability of free men and women for what they have done, not for what they may do. The Due Process Clause reflects the constitutional imperative that incarceration to protect society from criminals may be accomplished only as punishment of those convicted for past crimes and not as regulation of those feared likely to commit future crimes.”
Next, we think this legislature needs to protect and uphold the constitution of the State of Texas, and not allow jurisdictions to violate the right to bail by implementing their own schemes. In Harris County, for example, it appears the judges just decided 15% of misdemeanants were not going to get out of jail under the new bail policy. Under the new bail policy, judges are permitted to set an unaffordable bail in order to specifically detain a person, which we believe is facially unconstitutional under the federal constitution because it purports to allow for preventative detention in many low-level cases and also under the Texas Constitution which specifically enumerates which crimes those can be.
This legislature needs to take a stand against these policies and tinkering with constitutional rights in the name of some movement. The right to bail should not depend on who is in power and who they decide are the “dangerous” or bad people or who they are say are the good people. The right to bail should be governed by the appropriate cases and the rule of law. The concept that misdemeanor defendants should get a no bail hold is the next move if Texas starts tinkering with the constitution again.
Finally, we can never discuss preventative detention without saying you have to give the Supreme Court’s decision in U.S. v. Salerno a read, particularly the dissent by Justice Thurgood Marshall. Having read it probably a 1,000 times myself, I still believe he was right. Preventative detention should have been held unconstitutional in 1987 because as Justice Marshall said it is consistent with tyranny and it is a decision which will go forth without authority and come back without respect.
 Sec. 11a. DENIAL OF BAIL AFTER MULTIPLE FELONIES. (a) Any person (1) accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor, (2) accused of a felony less than capital in this State, committed while on bail for a prior felony for which he has been indicted, (3) accused of a felony less than capital in this State involving the use of a deadly weapon after being convicted of a prior felony, or (4) accused of a violent or sexual offense committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, after a hearing, and upon evidence substantially showing the guilt of the accused of the offense in (1) or (3) above, of the offense committed while on bail in (2) above, or of the offense in (4) above committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, may be denied bail pending trial, by a district judge in this State, if said order denying bail pending trial is issued within seven calendar days subsequent to the time of incarceration of the accused; provided, however, that if the accused is not accorded a trial upon the accusation under (1) or (3) above, the accusation and indictment used under (2) above, or the accusation or indictment used under (4) above within sixty (60) days from the time of his incarceration upon the accusation, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused; provided, further, that the right of appeal to the Court of Criminal Appeals of this State is expressly accorded the accused for a review of any judgment or order made hereunder, and said appeal shall be given preference by the Court of Criminal Appeals.
(b) In this section:
(1) "Violent offense" means:
(B) aggravated assault, if the accused used or exhibited a deadly weapon during the commission of the assault;
(C) aggravated kidnapping; or
(D) aggravated robbery.
(2) "Sexual offense" means:
(A) aggravated sexual assault;
(B) sexual assault; or
(C) indecency with a child.
 Sec. 11b. DENIAL OF BAIL FOR VIOLATION OF CONDITION OF RELEASE. Any person who is accused in this state of a felony or an offense involving family violence, who is released on bail pending trial, and whose bail is subsequently revoked or forfeited for a violation of a condition of release may be denied bail pending trial if a judge or magistrate in this state determines by a preponderance of the evidence at a subsequent hearing that the person violated a condition of release related to the safety of a victim of the alleged offense or to the safety of the community.
 Sec. 11c. DENIAL OF BAIL FOR VIOLATION OF PROTECTIVE ORDER INVOLVING FAMILY VIOLENCE. The legislature by general law may provide that any person who violates an order for emergency protection issued by a judge or magistrate after an arrest for an offense involving family violence or who violates an active protective order rendered by a court in a family violence case, including a temporary ex parte order that has been served on the person, or who engages in conduct that constitutes an offense involving the violation of an order described by this section may be taken into custody and, pending trial or other court proceedings, denied release on bail if following a hearing a judge or magistrate in this state determines by a preponderance of the evidence that the person violated the order or engaged in the conduct constituting the offense.