By now, it is unlikely that anyone hasn’t heard of “social distancing.” Since the emergence of the novel coronavirus earlier this year, a full-court press of public initiatives have been enacted to curb its spread — with the need to physically distance ourselves from one another as the chief aim.
Though not without great economic and other costs, these policies have largely been met with civic solidarity.
Meanwhile, in an effort to reduce the spread of coronavirus in criminal justice systems, many jurisdictions, including Travis County, have been releasing hundreds of felony jail inmates on their own recognizance (mainly pretrial detainees who haven’t been convicted of a crime but who often remain in jail prior to trial). In a bid to secure public safety, Gov. Greg Abbott issued an executive order last month halting personal recognizance bonds for those charged with, or previously convicted of, violent crimes (although lawsuits challenging his order are working their way through the courts).
To be sure, imposing social distancing in correctional facilities that, as a matter of course, keep hundreds of people in close proximity is a challenge. It does make sense to release certain eligible detainees when safe to do so. But hard experience has already shown why progressive blanket-release policies cannot rest upon good intentions alone.
In Utah, one inmate who was released amid coronavirus fears was rearrested for allegedly breaking into a home and threatening the owner at knifepoint. He had multiple prior felony convictions, including burglary and assault. Similarly, another inmate released in Kentucky was rearrested on murder charges. New York — a state already failing with regard to pretrial reform — released eight sex offenders from lockup, three of whom were deemed at the highest risk for reoffense.
Make no mistake, public safety should always be the No. 1 priority of every criminal justice reform policy. In our current situation, there’s an obvious tension between government’s immediate duty to reduce the spread of a deadly pathogen and its traditional duty to provide for the community’s security. However, large releases of jail inmates without apparent due consideration of their risk profiles — especially those with a history of relatively serious felony charges — foolishly privileges the former at the expense of the latter. Beyond being reckless in the near term, this could poison the well against much-needed reforms to pretrial justice across Texas moving forward.
According to state jail data, pretrial populations now account for roughly three-quarters of Texas’ jail populations. In normal times, such large populations have borne enormous financial costs and weighed heavily upon due process rights. Most bail decisions statewide amount to little more than a shake of a Magic 8-Ball and fail to adequately account for risk. Texas jails have been and remain debtors’ prisons.
Those concerns are now compounded with a deadly contagion loose.
Fortunately, it isn’t necessary to reinvent the wheel or resort to haphazard policymaking. Appropriately balancing our health and safety requires cities and counties to base any release decisions on risk, preferably with validated risk-assessment tools.
These tools —which provide simple and objective risk calculations based on an individual’s criminal history — have been shown here in Texas to effectively distinguish between those who can be safely released and those who ought to remain detained. If there is to be any basis for safely reducing jail populations, this approach ought to be it.
Texas judges and magistrates are clamoring for such tools, and state lawmakers have already filed bills to provide them; we should redouble our efforts to pass them into law. We may have a shared interest in detaining people prior to trial only when we must, but that doesn’t obviate the need for prudence. Blanket inmate releases don’t fit that bill.