COCHRAN, J.,
filed a statement concurring in the refusal of the petition for discretionary review.
I agree with the Court’s decision to refuse Mr. Benefield’s petition for discretionary review because his grounds for review, as written, do not merit relief. However, because this case raises several legitimate constitutional concerns about judicial review of the pretrial-bond and pretrial-release processes, I write briefly to discuss whether and why the pretrial-bail process has perhaps gone astray of its original statutory purpose.
I.
After his wife left for work on February 8, 2012, Brent Benefield — the primary day-time caretaker of the couple’s infant son — noticed that his son was not breathing and was coughing up blood. He called 911. The four-month-old baby was admitted to the hospital with “numerous injuries to his body including a brain injury that resulted in a subdural hematoma inside his skull as a result of blunt force trauma.” He also had “retinal hemorrhages in both
eyes, along with swelling in the brain.” The baby died four days later. The autopsy report listed the cause of death as “closed head injury due to the blunt force trauma to the head and brain.” The medical examiner concluded that the manner of death was homicide.
Two months later, Mr. Benefield was arrested and charged with injury to a child by causing seriously bodily injury or death. Initially, the bail was set at one million dollars. Mr. Benefield filed an application for a writ of habeas corpus, claiming that the amount of bail was excessive. He offered evidence from three witnesses to support his argument that he should be released on his own recognizance. After the hearing, the trial judge lowered the bail to $200,000. Not satisfied with that result, Mr. Benefield appealed to the court of appeals, which affirmed the trial judge’s bail.
Mr. Benefield then filed a petition for discretionary review in this Court.
II.
The early common-law history of the right to pretrial bail showed “a profound regard for a man’s personal freedom.”
In England, a defendant who qualified for bail was “almost invariably” released by the sheriff, both for the sake of the accused, but also to avoid the “costly and troublesome” nature of imprisoning the accused.
Because English sheriffs sometimes abused their power to grant bail, the 1275 Statute of Westminster authorized a general right to bail for all offenses “for which one ought not to lose life nor member” or when the accusation was based on “light suspicion.”
During the early American era, state bail systems were used solely “to ensure the appearance of the accused at trial.”
Beginning in the mid-twentieth century, Congress and the states began to authorize pretrial detention for certain particularly heinous crimes and particularly dangerous defendants, in part because some judges had intentionally set bail so high that a prisoner could not realistically pay it and thus courts were employing their own, unconstitutional form of pretrial deten
tion.
Not only did that ploy violate the Excessive Bail Clause of the federal constitution, it also “east[ ] doubt on the honesty of the American criminal justice system and prevented] the development of objective standards of dangerousness.”
Texas, like Congress, enacted constitutional provisions that allow pretrial detention without bail for some selected crimes and defendants
and ensure that all other defendants may be released before trial under a personal recognizance bond or appropriate bail. Article 17.15 of the Texas Code of Criminal Procedure sets forth the proper criteria for determining bail.
The “primary purpose” of bail is to ensure a defendant’s presence at trial.
And, as part of “the nature of the offense,” the length of the potential sentence is one factor to consider in the bail-setting decision.
Other “pertinent factors” include a defendant’s family and community ties in the area, work record, length of residency, prior criminal record, and ability to make the bond.
On appeal or in a habeas proceeding, the defendant has the burden to prove that bail is excessive.
However, the citizen who has been accused, but not convicted, has a “strong interest in liberty.”
Bail may not be used as “an instrument of oppression”
to keep an accused “off the streets” or to coerce a plea. The Supreme Court has explained that “[t]he time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces
idleness;” all the while he is “living under a cloud of anxiety, suspicion, and often hostility.”
In addition, a pretrial detainee is “hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense.”
In balancing the accused’s due-process interests and the community’s safety interests, the Texas Legislature has statutorily ensured that a trial judge will, in the vast majority of cases, release a defendant pre-trial, while giving the trial judge appropriate tools to provide suitable oversight to prevent the accused from fleeing the jurisdiction, intimidating witnesses, committing crimes, or posing a realistic threat to the community.
III.
At his bail hearing Mr. Benefield presented his case to be released on his own recognizance. Witnesses testified that he was an “extremely loving” father who was “excellent” with his all of his children— overall, a “very good dad.” Except for an arrest warrant issued for failure to pay traffic tickets, Mr. Benefield had no criminal history. He had lived in Wichita County for upwards of fifteen years, and had strong family ties in that area. While he had little to no money to post bail himself, family members testified they could help him post bail, within reason.
Mr. Benefield also argued that the State would not be able to prove its case against him. He presented police records showing Benefield’s wife had experienced post-par-tum depression after the birth of their son and had stopped taking her medication shortly before the baby’s death, implying that perhaps she caused the child’s fatal injuries. Mr.
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COCHRAN, J.,
filed a statement concurring in the refusal of the petition for discretionary review.
I agree with the Court’s decision to refuse Mr. Benefield’s petition for discretionary review because his grounds for review, as written, do not merit relief. However, because this case raises several legitimate constitutional concerns about judicial review of the pretrial-bond and pretrial-release processes, I write briefly to discuss whether and why the pretrial-bail process has perhaps gone astray of its original statutory purpose.
I.
After his wife left for work on February 8, 2012, Brent Benefield — the primary day-time caretaker of the couple’s infant son — noticed that his son was not breathing and was coughing up blood. He called 911. The four-month-old baby was admitted to the hospital with “numerous injuries to his body including a brain injury that resulted in a subdural hematoma inside his skull as a result of blunt force trauma.” He also had “retinal hemorrhages in both
eyes, along with swelling in the brain.” The baby died four days later. The autopsy report listed the cause of death as “closed head injury due to the blunt force trauma to the head and brain.” The medical examiner concluded that the manner of death was homicide.
Two months later, Mr. Benefield was arrested and charged with injury to a child by causing seriously bodily injury or death. Initially, the bail was set at one million dollars. Mr. Benefield filed an application for a writ of habeas corpus, claiming that the amount of bail was excessive. He offered evidence from three witnesses to support his argument that he should be released on his own recognizance. After the hearing, the trial judge lowered the bail to $200,000. Not satisfied with that result, Mr. Benefield appealed to the court of appeals, which affirmed the trial judge’s bail.
Mr. Benefield then filed a petition for discretionary review in this Court.
II.
The early common-law history of the right to pretrial bail showed “a profound regard for a man’s personal freedom.”
In England, a defendant who qualified for bail was “almost invariably” released by the sheriff, both for the sake of the accused, but also to avoid the “costly and troublesome” nature of imprisoning the accused.
Because English sheriffs sometimes abused their power to grant bail, the 1275 Statute of Westminster authorized a general right to bail for all offenses “for which one ought not to lose life nor member” or when the accusation was based on “light suspicion.”
During the early American era, state bail systems were used solely “to ensure the appearance of the accused at trial.”
Beginning in the mid-twentieth century, Congress and the states began to authorize pretrial detention for certain particularly heinous crimes and particularly dangerous defendants, in part because some judges had intentionally set bail so high that a prisoner could not realistically pay it and thus courts were employing their own, unconstitutional form of pretrial deten
tion.
Not only did that ploy violate the Excessive Bail Clause of the federal constitution, it also “east[ ] doubt on the honesty of the American criminal justice system and prevented] the development of objective standards of dangerousness.”
Texas, like Congress, enacted constitutional provisions that allow pretrial detention without bail for some selected crimes and defendants
and ensure that all other defendants may be released before trial under a personal recognizance bond or appropriate bail. Article 17.15 of the Texas Code of Criminal Procedure sets forth the proper criteria for determining bail.
The “primary purpose” of bail is to ensure a defendant’s presence at trial.
And, as part of “the nature of the offense,” the length of the potential sentence is one factor to consider in the bail-setting decision.
Other “pertinent factors” include a defendant’s family and community ties in the area, work record, length of residency, prior criminal record, and ability to make the bond.
On appeal or in a habeas proceeding, the defendant has the burden to prove that bail is excessive.
However, the citizen who has been accused, but not convicted, has a “strong interest in liberty.”
Bail may not be used as “an instrument of oppression”
to keep an accused “off the streets” or to coerce a plea. The Supreme Court has explained that “[t]he time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces
idleness;” all the while he is “living under a cloud of anxiety, suspicion, and often hostility.”
In addition, a pretrial detainee is “hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense.”
In balancing the accused’s due-process interests and the community’s safety interests, the Texas Legislature has statutorily ensured that a trial judge will, in the vast majority of cases, release a defendant pre-trial, while giving the trial judge appropriate tools to provide suitable oversight to prevent the accused from fleeing the jurisdiction, intimidating witnesses, committing crimes, or posing a realistic threat to the community.
III.
At his bail hearing Mr. Benefield presented his case to be released on his own recognizance. Witnesses testified that he was an “extremely loving” father who was “excellent” with his all of his children— overall, a “very good dad.” Except for an arrest warrant issued for failure to pay traffic tickets, Mr. Benefield had no criminal history. He had lived in Wichita County for upwards of fifteen years, and had strong family ties in that area. While he had little to no money to post bail himself, family members testified they could help him post bail, within reason.
Mr. Benefield also argued that the State would not be able to prove its case against him. He presented police records showing Benefield’s wife had experienced post-par-tum depression after the birth of their son and had stopped taking her medication shortly before the baby’s death, implying that perhaps she caused the child’s fatal injuries. Mr. Benefield also introduced into evidence a conversation between his trial attorneys and the pathologist who performed his son’s autopsy in which the pathologist explained he was unsure “whether [the State would] be able to come up with legal proceedings because ... you have to get into beyond a reasonable doubt realm” and “this is a-you know, kind of out in the gray zone.”
The State argued against Mr. Benefield’s release, stating that he was a flight risk because he was facing a sentence of up to 99 years or life.
Mr. Benefield responded by testifying that he would not flee if he was released because he has two young children to take care of. To support his claim, he explained that he was aware of the investigation leading up to his arrest and had “ample opportunity” to flee, but chose not to do so. Indeed, the arresting officers
called Mr. Benefield’s home on the day of the arrest and explained they were on their way to arrest him. He patiently awaited their arrival and peacefully allowed them to arrest him.
This case raises legitimate constitutional concerns about our pretrial-release system: a citizen, presumptively innocent, may be detained in jail before trial — on the taxpayers’ dime
— when he would most likely appear for trial if released on his own recognizance.
Indeed, the ABA notes that “[i]t should be presumed that defendants are entitled to release on personal recognizance,” although this presumption may be rebutted by “evidence that there is a substantial risk of nonappearance or need for additional conditions.”
In reality, the possibility of a lengthy prison sentence frequently results in an implicit presumption that a defendant will flee unless a very high bond is set.
This is often the case even when
there is significant evidence, as there was in this case, suggesting that the defendant will not flee. Furthermore, a significant proportion of those who are actually convicted of serious felony offenses are placed on community supervision.
If the person is non-threatening enough to live in the community
after
he has been convicted of a very serious crime, why is he presumed too threatening to live in that community on his own recognizance
before
he has been convicted of any crime? Is it because the person who
might
commit a crime if released is more threatening than the person who has been convicted of committing a crime?
Finally, it seems far from certain that setting a high bond does a better job of ensuring a defendant’s presence at trial than releasing that person on his own recognizance.
Empirical studies suggest that simple prophylactic measures can be taken to decrease failure-to-appear rates when defendants are released on their own recognizance.
And to further alleviate concerns, trial judges may place conditions on a defendant’s release, such as strict adherence to a curfew, home confinement, electronic monitoring, and drug testing.
In 2009, the Harris County Jail Reduction Committee found that “[approximately 15,000 defendants were considered low risk according to interviews by the County’s Pretrial Services,” and recommended that these individuals should be “eligible for a personal recognizance (PR) bond.”
At that time, “at least 500 individuals have been jailed longer than a year awaiting trial, while approximately 1,200 have been in jail six months or more.”
In some eases, even when the bond is set at a reasonable, low-dollar amount, the defendant still cannot post it. While some defendants have friends and family who can help them post bail, others do not. These unfortunate many, then, are left with two choices: remain in custody until trial (which likely means losing their job, and being separated from their family),
or, if they qualify,
seek the services of a for-profit bail bondsman, which comes with its own set of costs and risks.
Setting an appropriate bail or permitting pretrial release on a personal recognizance bond is a weighty decision with important considerations and constitutional concerns on all sides. It is, however, a decision that all too often results in the pretrial detention of the accused citizen, despite compelling evidence suggesting pretrial release may be less costly to the community, fairer to the defendant, and, when appropriate conditions are attached, capable of ensuring the safety of the community. Appellate courts must provide meaningful review of the bail and pretrial-release decision to ensure that trial judges strike a constitutional balance between community safety and ensuring a defendant’s appearance on one side, and the social and financial costs (both to the State and defendant) of oppressive pre-trial detention on the other.
Because this petition does not clearly raise these difficult issues, I concur in the Court’s decision to refuse Mr. Benefield’s petition for discretionary review.