In Case of Emergency – Break Glass

By Michael J. Whitlock

We’ve all seen fire hose and axe stations as we walk through office buildings only to be used in case of an emergency. Expansion of preventive detention, requiring constitutional amendments is the order of the day in Connecticut, Indiana, and Texas. Some members of these state legislatures have deemed the increase in crime an emergency and preventative detention, holding an offender in jail without bail, until trial, the answer.

After years of overreaching criminal justice reforms these legislative bodies, out of desperation, are looking to break the glass to create the necessary tools to aid in putting out a fire they themselves help ­­start. They want to change constitutional language that has been in place for at least two centuries. Why now?

Bail agents across the country know, the epidemic of chronic repeat offenders is relatively new. More and more defendants seeking bail have prior arrests, convictions, and multiple pending cases. Why is that? In my view, it is the effort to eliminate secured bail requirements which has been underway for the last seven years or so. The chicken has come home to roost.

Harris County, Texas is a prime example of what can happen when judges start releasing nearly every misdemeanant and many felony offenders on personal recognizance bonds. When the Texas Senate Judiciary Committee heard testimony on SJR 44 earlier this week, most of the testimony in support of this resolution hailed from Harris County.

Senate Joint Resolution 44 proposes to empower judges with the authority to detain a defendant in jail without bail for certain offenses. This can only be done by amending the Texas State Constitution. I watched the hearing online it was evident from the jump, SJR 44 was passing out of this committee.

Testifying in support of SJR 44 were Harris County District Attorney Kim Ogg and family members of crime victims lost to senseless murder including one family whose nine-year-old daughter was killed in a road rage incident. The mother of that child also criticized Harris County’s policy of releasing offenders on PR bonds and not secured release. An ACLU representative who dared testify in opposition had clearly read the room and commented, “he would rather be somewhere else”. SJR 44 has been voted out of the Judiciary Committee and is expected to clear the entire Senate before it faces opposition in the House where it had failed to pass previous attempts.

Indiana legislators also want to amend its state constitution to authorize judges to detain an offender if they are deemed to be a risk to public safety. SJR 1 does not appear to have the votes required to pass this session as it waits for a hearing in the House but the session is not yet over.

Just yesterday, HJR 261 was introduced in the Connecticut General Assembly. This measure is more in line with what New Jersey did in 2016, release all offenders on no bail unless they are considered a risk to public safety, in which case, they will be detained without bail until trial.

There is a reason state and federal constitutions are infrequently amended. The process is difficult. In Indiana, the joint resolution must pass by a two-thirds majority in two consecutive sessions before it is voted on by the people. It is a three-year process.

There is an argument to be made about expanding preventative detention beyond those charged with capital murder and treason. Some people are just too dangerous to be released pending trial. The problem is, criminal justice reforms have contributed to the increase in crime with soft on crime measures that release offenders on low or no bail and fail to prosecute and incarcerate offenders. Ankle monitors and home detention are the order of the day because that saves the state money. Public safety should trump costs savings. So, when it becomes necessary to break that glass in an emergency, we need to make sure we don’t step on the broken shards only to injure ourselves further.

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