The Price of Freedom

On Behalf of | Jun 4, 2015 | Bail

Recent events in Waco have clearly caught public attention. They have also shed light on the price of your freedom. The arrest of 175 people on May 17, 2015 in Waco, Texas brought with it the issue of people who must wait in jail because they are unable to afford to bond out. These events have also put the spotlight on the McLennan County Criminal Justice system.

If you are accused of a crime, even when you are supposedly “presumed innocent,” freedom can often come with a hefty price tag. As we are seeing in Waco, accused individuals who cannot afford to bond out often face days, weeks, and even months of pretrial detention.

What does the law say about bail?

The primary purpose of bail is to ensure an accused person’s appearance in court. Estrada v. State, 594 S.W. 2d (Tex. Crim. App. 1980). Bail is supposed to be “security” that keeps an accused person from skipping town and failing to show up for court. Bail is NOT supposed to be used just to keep the person locked up or as punishment. Bail is a pre-trial instrument. The individual “out on bail” has not even been convicted of anything!

Over the years, courts have held that a judge may also consider the “safety of the community” when setting bail. U.S. v. Salerno, 481 U.S. 739 (1987). When bail is set it must be limited to the amount necessary to ensure the accused person’s appearance and protect the community, and must not be so high as to be excessive or oppressive. Ex Parte Ivey, 594 S.W. 2d 98, 99 (Tex. Crim. App. 1980); Ex Parte Vasquez, 558 S.W. 2d 477, 479 (Tex. Crim. App. 1977); U.S. CONST. amend. VIII. Texas gives most accused individuals the right to bail, unless they have been arrested for additional offenses/violations while already on bail or accused of capital murder. TEX. CONST. art. I, § 11. Texas law also makes clear that judges must conduct an individualized inquiry when setting bail. Tex. Code Crim. Proc. art. 17.15; Ex Parte Pemberton, 577 S.W. 2d 266, 267 (Tex. Crim. App. 1979). In other words, bail is not meant to be a “one size fits all” sort of thing.

The Numbers: National and Local

Despite the strong presumption in the law toward setting a reasonable bail, pretrial detention has increased across the country in recent decades. Although crime rates have decreased nationally, jail populations have risen, in part because of the growing practice of counties incarcerating defendants prior to trial. Pretrial Justice Inst., Rational Transparent Bail Decision-Making: Moving from a Cash-Based to a Risk-Based Process 1 (2012); Laura I. Appleman, Justice in the Shadowlands: Pretrial Detention, Punishment, & the Sixth Amendment, 69 Wash. & Lee Rev. 1297, 1311 (2012).

In 1996, jail populations were split down the middle, with 50% of inmates serving sentences and 50% in pretrial detention awaiting trial. Pretrial Justice Inst., Rational Transparent Bail Decision-Making: Moving from a Cash-Based to a Risk-Based Process 1 (2012). By 2010, 61% of inmates nationwide were pretrial detainees. Todd Minton, Bureau of Justice Statistics, Jail Inmates at Mid Year 2010: Statistical Tables (2011).

Many Texas counties also fall around 55%-60% in the percentage of inmates that are held in their jails pretrial. However, figures in recent years show that McLennan County is well above the national and Texas average: nearly 80% of inmates in McLennan County are pretrial detainees (and keep in mind these numbers were this high even before the incident on May 17, 2015).

Sadly, an opinion article was published in the Dallas Morning News in 2013 titled “McLennan County has a Higher Incarceration Rate than Russia.” The article states, “A district attorney shouldn’t be able to use a mere ‘tough on crime claim’ to explain a jail population that is off the charts. McLennan County, you’ll notice, has a higher incarceration rate than the Russian Federation’s.”

Even in light of the work we do and what we see on a daily basis, I hoped the numbers would prove the opinions in this article wrong. Unfortunately, statistics from the Texas Commission on Jail Standards, as recent as May 1, 2015, show that McLennan County has the 4th highest incarceration of all of the counties in Texas. Even if we disregard Russia’s current incarceration rate, the numbers are concerning.

So why should we care about accused individuals who are unable to afford bail and who must sit in our county jail for weeks and months?

First, Pretrial Detention Costs McLennan County Taxpayers Serious Money!

The daily costs to keep accused individuals in detention quickly adds up. Statewide average costs to county taxpayers are around $59.00 to incarcerate one individual in county jail, per day. Brandon Wood, then-Assistant Director of the Texas Commission on Jail Standards, in presentation at American Bar Association, Criminal Justice Section, Roundtable on Pretrial Detention in Texas, held in Austin, Texas, March 30, 2012 (Figure reflects cost per jail bed per day).

The Waco Tribune recently reported that it costs McLennan County $51.00 per day to house inmates at its own facility, and $45.50 per day to house inmates at the private facility next door, the Jack Harwell Detention Center.

McLennan County has made some positive steps in dealing with the high jail numbers by implementing a program that allows ankle monitors. This has reduced jail costs to some degree, but the pretrial detention numbers are still high. The numbers speak for themselves–high incarceration rates in McLennan County are costing taxpayers serious money, especially in light of the latest incident at Twin Peaks.

Second, Pretrial Detention Hurts Accused People & Their Family Members

For many people, pretrial detention eliminates the small safety net they had prior to their arrest. Depenalizing Poverty: A proposal for Improving Harris County Bail Policies, Texas Fair Defense Project, 2014. And due to pretrial detention, people who were previously making it, but just barely, can quickly find themselves in poverty. Justice Policy Inst., System Overload: The Costs of Under-Resourcing Public Defense 19 (2011) [hereinafter System Overload]. People who remain detained even just for a few days may lose their jobs, their homes, and their vehicles. System Overload at 18; Ana Yanez-Correa & Molly Totman, Tex. Crim. Justice Coal., Costly Confinement and Sensible Solutions: Jail Overcrowding in Texas 9 (2010).

Pretrial is more than an economic burden for accused individuals, it also can affect an individual’s physical and mental health. Depenalizing Poverty: A proposal for Improving Harris County Bail Policies, Texas Fair Defense Project, 2014. The mere experience of jail can traumatize individuals with mental health problems. National Assoc. of Cntys Legislative Dep’t, Diverting the Mentally Ill from Jail (2005).

Pretrial detention not only impacts the accused individual being detained, it also has collateral consequences for their family members. Families often lose the income of the individual being detained, which can result in a loss of health insurance, housing, and other issues. The detained individual may lose custody of their children–all of this before the person has ever been convicted of any actual offense. Sharon Dolovich, Foreword: Incarceration American Style, 3 Harv. L. & Pol’y REv. 237, 245 (2009); System Overload at 18.


Pretrial supervision methods (like ankle monitors) can accomplish many of the same goals that bail is supposed to achieve. While our county has made some steps in this direction, the jail numbers continue to be high. More proactive steps need to be taken to address the jail situation in McLennan County. Freedom is costly, but those costs should not be prohibitive or single out a socioeconomic group. Bail was put in place to protect communities and serve the justice system: not to fill our jails up with those who simply cannot afford to be free.

If this is something that you think needs fixing in our community, I would encourage you to write or speak to your local politicians and express your desire to see change in this area.


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