The Roman poet Decimus Iunius Iuvenalis, known in English as Juvenal, was the first to ask the famous question “Quis custodiet ipsos custodes”, which we loosely translate as “Who will watch the watchers?” Well, an interesting article was published recently in The Texas Tribune might have us in the Texas criminal justice system instead asking “Quis solvit ipsos custodes?” In other words “Who will pay for the watchers?”
The article discusses a Harris County defendant who is out on bond for the offense of capital murder. As a condition of his release, he was required to wear a GPS ankle monitor. While out on bond, the defendant became delinquent in his monthly service fee to the company who installed and monitored his ankle device. Without notice to the assigned court, county pretrial services, or seemingly anyone else, the company “repossessed” the device, taking it off the defendant. As such, the defendant was not being monitored and was, in the words of one county official, effectively at large. Needless to say, this was upsetting to the family of the man allegedly killed by the defendant.
This incident brings into focus the competing interests that have to be balanced when discussing a defendant’s release from jail pending charges. The rights of the accused to a reasonable bail, the safety of the public (including witnesses and family), the financial resources of the county: all of these factors and more have to be considered. It is very easy to simply state that defendants should wait out their day in court in jail where we know where they are at all time and can assure that they will not flee. But this fails to recognize the financial strain that over-excessive incarceration can place on a county. Keeping the accused in jail places all associated costs squarely on the county and local taxpayers. Additionally local jails simply cannot house everyone awaiting trial, to say nothing of the constitutional right to bail enjoyed by all accused of a crime.
However, when defendants are released from jail, there can be significant financial hardships that make complying with bond/release conditions very hard. An arrest with even a short incarceration until a bail bond can be posted can result in financial disruption or job loss. Initial bond costs, electronic monitoring installation fees, pre-trial services fees, attorney fees; getting all of these costs and more handled can be more than some defendants are able to manage. Is the answer to simply put them back in jail? To waive certain fees? Which ones? Who has to do without or with less?
To quote another famous saying “there’s no such thing as a free lunch”. Keeping defendants in jail prior to trial is expensive. Keeping them out of jail is expensive too. Ultimately those costs have to be paid by someone; we cannot just wish them out of existence.