Bail Law Uncovered: Texas vs. New Jersey with Ken Good

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Lou Casadia 
Good afternoon, everyone. This is another episode of the New Jersey Criminal Podcast. I am your host, Louis Casadia, attorney in the South Jersey area, specializing in criminal law. I'm here with Mr. Ken W. Goode. He's an attorney out of Texas, he specializes in bail bonds. He's also a member of the board of directors on the Professional Bondsmen of Texas Committee. So, Ken, tell us a little more about yourself.

Well I guess probably the most important thing for people to know is I'm married and I have two kids. They're both daughters so I'm a girl dad and I think being a girl dad is very different from being a boy dad and if you have girls and boys then it's even more different so when you have girls like it is look at them and they'll start crying or they could start crying and when you have the stubborn girls that's I mean I think you need a training just all in that on how to be a good parent.

I think that's probably the most important thing. My youngest had a bone marrow transplant when she was five and she's now a junior in college. So I would like to highlight that because I think we're completely different people than we are, than we would have been without that because it's very humbling when you go through a bone marrow transplant and you have a donor off of the Be a Match program because then you have this helpless feeling that there's nothing you can do to help your family. Through the grace of God, you have a stranger who's willing to help your family.

I'm glad everything worked out for her. Is she going to be a lawyer too or no?

Ken Good (01:30.604)
No, she's a gamer. We were out at 11 o'clock a couple of nights ago getting the Nintendo Switch 2 with a whole long line of true gamers and I was by far the oldest one in the line.

Did you get yourself one too? Just to add.

No, I haven't played Nintendo probably. I said three years recently, but I think it's probably been a lot more than...

Yeah, so can tell us a little bit about, you know, your practice.

I specialize in bail law. I've argued cases before the Texas Court of Criminal Appeals. They're the court that regulates criminal cases, which would involve bail. And I've argued cases before the Supreme Court of Texas, but they wouldn't be criminal cases. I've been an attorney since 1989, so it tells you how old I am.

Ken Good (02:23.222)
I've always kind of had an appellate mind, so I've always liked the legal issues involved with bell reform. So I've written articles across the country on what makes good bell reform, what's bad bell reform, what works, what doesn't work, and what's going wrong in our urban areas. And so I've written a lot of articles on that, probably too many, some people would say.

But I'm also, as you've mentioned, on the board of directors of the Professional Bondsmen of Texas. I'm on the legislative committee, so we propose bills to the legislature. We testify regarding bills. And somehow with all that, I stay very busy.

we start with this question. Tell me how bail works in Texas, the procedurally, like take me through it.

A vast majority of people are arrested with a probable cause affidavit. So a policeman goes to a judge, says, I have these facts and I am asking you judge to issue a warrant. So that person, then the trial court or the judge issued a warrant. So then there's a warrant for the arrest of a proposed defendant.

They're arrested and they are brought before a magistrate and they have bail set for them. Charges have not been filed. And so we put them on bail waiting to see if charges are going to be filed. We have a couple of counties where they do immediate filings. they file when you presenting the affidavit for request for a warrant, they're making a decision about whether to file the charge. But in the majority of the state, you're waiting for the state to decide whether they're going to

Ken Good (04:02.902)
file those charges and there's time limits but that can take a while and so we call that period the black hole, you know, period because you know they could decide not to file charges and how do you find out? You might not. I mean there's situations for that but then if they file charges then you are brought before the court for your arraignment. They may change the bail amount but bail is there to... it's the assurance that you give that you will show up to answer the charges that are filed against you.

The purpose of bail is to ensure that you will show up. If you don't show up, then the bondsman has a period of time in Texas to either bring you back to court to get the case back on track. And they're rewarded for that. They pay less than the bond amount. And if they don't bring you back during that time period, then they pay the full amount of the bond to the county. a lot of people think, well, bondsmen don't do anything. They don't ever have to pay for someone's failure to appear.

Quickly.

Ken Good (04:59.586)
We pay millions and millions of dollars every year to counties for failures to appear. So we have a job, we do it very well, and if we don't, or if the bonding industry does not, then there's a penalty to pay for that.

Gotcha. So in Texas then, when they get that warrant for your arrest, they haven't filed any charges against you at that point. They're literally just putting in a warrant to ensure that you're going to appear if they do file a

I do think that's the initiat-

of the criminal case. it's when the it's a it's a affidavit of probable cause. So they've issued a warrant based on probable cause and then they get you before a judge for bail and then you're based upon those allegations you're waiting to see if the DA is going to accept them to file charges or you're waiting to see if the grand jury is going to indict you if it's a felony.

Ken Good (05:55.69)
I think technically in Texas they don't, they can file an information, but I think probably, probably 80, 90 percent, probably 90 percent or more felony cases get presented to the grand jury in Texas.

So is there a movement in Texas now to change the way the bail rules work?

Well, you know, we've just finished a legislative session. Four years ago, we passed major bail reform, which was the exact opposite of the some of the directions some of our urban areas were going. They were strengthening bail. And we just had another legislative session where we tweaked it further and we strengthened it even more. So I think Texas is going in the opposite direction of these bad bail reform measures, especially in our urban areas.

And they're strengthening it. So we have a long list of offenses where you're not eligible for simple release. Depends on what you call it in different states. Texas would call it release on a personal bond. California, they'd call it release on zero bail. New York, they'd call it release on no bail. So we have a long list of violent offenses in Texas where you're not eligible for a personal bond. So either you're going to post cash bond or a surety bond in Texas on those offenses.

people watching this like tell me the difference between the different types of bonds so you got the cash bond the surety bond like what exactly is the difference between all

Ken Good (07:12.918)
Well, Texas recognizes only three types of bonds. There's other states that recognize other kinds, but in Texas we have a surety bond, which is a bond posted by a bail bondsman. We usually, you there's a, you pay a premium and then they're promising to pay the full face amount of the bond if you don't show up and you don't come back timely. The second type of bond that Texas recognizes is cash bond, where you just put up cash for the full amount of the bond with the court.

And the third type of bond that's recognized in Texas is a personal bond. And that's a bond without surety. So it's just your own little pinky promise, I promise. But since bonds in Texas always have a financial amount to it, it's like you would say, a personal bond, promise to show up and if I don't, I'm gonna pay $5,000 to the county. That's a misnomer because personal bonds, even if they prosecute them,

they never collect money. mean, I think you probably can see in our history, we've had stories like in Baltimore where they were reporting years ago that they had billions of dollars of uncollected personal bonds in that city or county. And that's probably true across Texas where they use personal bonds. If they don't show up, they never collect them. They probably prosecute the forfeiture, but they never collect.

Right, right. So I guess I'll talk about just for a moment, you know, how New Jersey does bail at this point. I practiced. I've been practicing criminal law for about 10 years now, and, during that time, they, you know, they completely changed our system. So before it was very similar to what you described, you know, you would have charges issued on a probable cause statement. In New Jersey, the charges were.

Yeah.

Ken Good (08:49.966)
Change

Louis Casadia (09:01.644)
considered filed at that point and you know the prosecutor would either present them to the grand jury and keep them in Superior Court or they'd send them back down to municipal court and in very rare circumstances they would dismiss. Oftentimes though even the ones that should have been dismissed they would just send the municipal court let them deal with it. But and then at that point you you know you would get a bail the judge would set a bail within I think it was 24 or 48 hours you'd have a hearing in front of a court to either keep that bail in place, increase it or decrease it and there is like a schedule you know they had

I'm a big proponent of schedules. really facilitate things, but those get attacked because, well, they get attacked by the proponents for change. But I'm very familiar with the New Jersey plan because, you know, I think it was enacted right before one legislative session. One of the ways, my understanding of what y'all did, y'all substantially increased site and release. And so a lot of charges changed where you couldn't put them in jail. You just gave them a citation to show up for court.

So so yeah for the audience so they so they understand all this though, you know, we went from essentially cash bail and To get more niche, you know, you didn't have bail bondsmen You usually you have to pay 10 % of what the bail was and they post the rest There was full cash, which is pretty self-explanatory You had to post your whole cash bail, which usually what they ended up doing is they had serious case Like a murder or something like that say well, this is five hundred thousand dollars full cash. They wouldn't

They wouldn't give it an assurity. They wouldn't let you do an assurity bond.

Well, see, in Texas, you can't do that. cannot. You have cash or surety and the judge can't tell you which one it is unless and until you fail to appear or or there's one other thing that can happen. But once you fail to appear, the court can limit a future bond to cash bond. They never do it, but you can do that in Texas. But initially you can't.

Louis Casadia (10:47.118)
So they would use the full cash as essentially their version. But the only other thing New Jersey had was they had, they call it 10%. So if they put 10%, that means if it was a $5,000 bail, you could post 500 and get out on the 500, basically be your own surety.

way to keep him in jail.

Ken Good (11:06.35)
Yeah, but those, I mean, the problem is those carry a high failure to appear rate and yeah, a very high failure to appear rate because we're dealing with problem children. I mean, I've seen that in, you know, the state of Illinois and you know, they just got rid of that 10 % our cash bonds and you know, the press made it sound like, they just got rid of bail. No, they got rid of bail a long time ago. But the problem with the 10 % is courts in Illinois were using it for, to fund operations. And so they got rid of it and didn't replace their funding from that revenue. And so that becomes, I mean,

In that situation, I don't know what they were doing in New Jersey, but it becomes the courts are funding themselves, at least partially, off of the failures of people, their lack of success in the criminal justice system. And that's bad, I think, for the system because you can't hold them accountable because you're relying upon that money to come in to help fund the court.

Yeah, I'm not sure how the funds were distributed or how that worked exactly, but obviously now that's all gone. Back in 2017, I believe it was the January 1st, 2017.

They said they weren't getting rid of the Bell industry, they immediately interpreted the New Jersey plan to mean that you had to try everything else before you could try a surety bond. so within the first 90 days, 60 days of the, of the new proposal, there was probably only three surety bonds written in the entire state.

Yeah, so, I mean, basically, it's just for the audience. So essentially how it works now is you either get when you get charged with a crime in New Jersey, they either put it on a summons where all that. Yeah, you just get a court date and you you show up or you don't show up.

Ken Good (12:37.804)
Yes, I really see what we can

Ken Good (12:43.564)
And those have a high failure to appear too.

Yeah, and what's funny in New Jersey, I don't know if they intended for this or it was just an oversight on their part, but if you get a warrant on a summons, this is the only time, I will say this is the only time the monetary bail still comes in in New Jersey is if you get a warrant for not appearing on a summons, the state can't make a motion to detain you, which is the new system I'll talk about in a second. They can't make a motion to detain you, so what ends up happening is, in my experience,

Either you just keep getting released on your own recognizance or eventually most courts will issue you a monetary bail. And that's the only time that you end up getting a monetary bail is where you get put on that summons and you fail to appear. Normally it takes a couple of times.

I look at the New Jersey plan as a detainer release system with a few changes.

Right.

Ken Good (14:06.138)
because it's so expensive. So they proposed alternatives where it's just released without supervision because they don't want to get anywhere close to the New Jersey plan because of how expensive it was.

Yeah, so just so everyone knows how it works. So if you get put on a warrant in New Jersey, then you get brought in front of a judge within 48 hours. The prosecutor decides that they're going to make a motion to detain you. And if they do that in three days, you'll have a hearing. It can be postponed for this reason or that reason. But once you have that hearing, if the judge orders that you're detained, the state now has 90 days to indict your case and 180 days to bring it to trial after that. And those timeframes, they get extended all the time for

a number of different reasons, including motion practice by the defendant. If the files a motion to litigate, that extends the clock, so to speak. So what you're left with is essentially, if you lose a detention hearing, a lot of times you lose the whole case because a lot of these, the lower level charges, third degree charges, your exposure is about, in realistic terms, of when you would be eligible for parole.

your exposure is about the same as the time you're going to be stuck in jail waiting to get to trial. you know, unfortunate for a lot of people who may have some pretty good defenses at trial is they get stuck in a position where they have to decide whether they want to sit in the jail longer, go into trial or taking some sort of offer that might let them out right away.

One of the things I've seen is, of all, New Jersey has not been opaque on the failures to appear. mean, there's really not very good data on that. But the other thing that I've heard on the New Jersey plan is that the makeup of the jail has not really changed. The big push for the New Jersey plan was the makeup of the jail was too heavily in certain minorities' numbers. And so they had to be more equitable. They proposed this. But afterwards, you may have had an initial reduction of the people in jail, but the

Louis Casadia (16:04.44)
There was.

Racial makeup of the jail had did not change. But I would even say the reduction in the jail population was not because of anything other than site release, just issuing a summons.

Yeah, in the very beginning, they basically took a swath of people and were like, all right, you're charged with possession of CDS drugs. You wouldn't have been in jail and then a new system. Your bail's reduced to zero. Like, have a good day. So there was a big, there was a big release of maybe 10, 20 % of inmates, I think, during that period of time.

But you could probably give me input on this because I think with the New Jersey plan, you can't hold misdemeanors. There's no circumstance that you can hold a misdemeanor, I bet.

The only time you can hold a misdemeanor is if it's domestic violence related and there may be one or two other exceptions.

Ken Good (16:52.75)
See, that's a charge-based release mechanism, which is terrible. So all misdemeanors, you get released. So what about if they fail to appear? Once. Can you hold them? No. What about twice? I mean, we've got examples in Harris County where people on misdemeanors, they use, where they, for a period of time, they use this simple release. We got examples of people missing court 17 times and they just get released over again. So I have a feeling that since the New Jersey plan, misdemeanors, I mean,

That's what that is, is you can't hold any misdemeanors at all.

Yeah, they usually, like I said before, if they are held it's because they got a monetary bail at that point.

Well, if they're held, it's probably because they have a felony in addition to the misdemeanor. Not because they have a misdemeanor.

If they have so a felony, then they would be able to file to detain them on that new felony. If it's on a warrant, if it's on a summons, they won't be able to. But if they fail to appear, and municipal courts, they always are set in monetary. If you don't want to appear, they're set in monetary bail. They're not very high, and they're pretty easy to pay.

Ken Good (17:56.302)
Well that just means that those cash bonds, because you don't have really very many, if any, bonds been operating.

Yeah, well that's that's thing too is like I don't even I haven't I'm sure there may be some bonds been out there still but Not not anything like there was before. I mean, I know personally some businesses that went

that I'm aware of.

Ken Good (18:14.018)
Well, let me ask you this. I mean, you're very familiar with the New Jersey system. is the, I mean, I've always heard, my interpretation of the New Jersey plan is the great expense that it had. It's not a better system than what you had before. would say in most areas, it's worse. mean, okay, your jail population went down, but your crimes increased. Well, of course it's going to increase. You've released a bunch of criminals and you told them we can't hold you for misdemeanors. And so they get the rules. They know what the rules are, what they can do and what they can't do.

Yeah, it's hard. I practiced as a prosecutor and now I practice as a defense attorney. As far as the administrative side of it is what costs more, what doesn't cost more, I can't speak to that.

Well, you know, the surety bond system didn't cost taxpayers anything. And so now we've got statewide pretrial services department that's had already went broke once and had to have a statewide tax increase and it still ran out of money. So, I mean, we can do that comparison real easily, but what I don't know and I haven't seen a study on is the cost for public safety. Now I've seen some stuff in the news that makes me question and the fact that they're not, that they're opaque. They don't release their failure to appear numbers and that they simply pretty much refuse to.

I think that it's pretty bad compared to

I will say, especially having come onto the defense side, one of the things that the judge can consider that they couldn't before is safety of the community and the seriousness of the charge itself. That was part of the constitutional amendment that they made to allow for this reform. What ends up happening a lot is ... You can have whatever opinion you want on that, but

Louis Casadia (19:56.374)
As far as the impact it's had on defendants is, you you get a lot of people who have no record, right? And then they go and they pick up a new, they pick up a case, and let's say it's a serious case, let's it's an aggravated assault, especially if it's domestic violence related. Now, courts are not supposed to, you know, they're not supposed to hold people based solely on the nature of the charge, right? There's case law on that.

But a lot of times what happens is that if you're charged with a serious enough offense, and I'm not talking about murder and like in that realm, that has a whole other standard. There's a presumption that you're going to be detained on those types of charges. And I've really never seen anyone released on those types of charges. Mid-ground serious charges, second-degree charges, aggravated assault, maybe some low-level robberies that don't involve any type of weapon or anything like that. And if you have no record and you're going in there on those types of charges, mean, depends what judge you're in front of.

I mean, I've seen some judges, they're very, very respectful of the recommended recommendation and others, you know, they see that charge and they basically kind of already made up their mind.

Help me understand this. For the New Jersey plan, my understanding is that I don't know what percentage the district attorney files a motion to detain, but over time, my understanding is that the motions to detain that have been filed, they're winning more and more of them. So you're getting more and more people detained based on the motion to detain.

Yeah, so, you know, it depends on what county you're in. I mean, if you're in, for example, a less populated county that has less cases and they have a burglary or something like that, they're more likely to put the file on them because they don't have a lot going on, right? Now you go to another county, it's got a higher population and they have a larger amount of like truly serious like cases. Well, you know, when you're at like

Louis Casadia (21:53.486)
15 detention hearings in one day, you kind of have to say, well, I think we should prioritize X, Y, and Z. So you're going to see less filings on, I would say, not that a burglary isn't serious, but when you're dealing with three or four shootings in a week, you have to prioritize more. So yeah, definitely there are certain counties that are going to file more often on less serious.

I have a lot of criticism of the New Jersey plan. Obviously, you probably never dreamed I would be familiar with the New Jersey plan, as I call it. my biggest criticism or one of my criticisms is we've changed bail in New Jersey to it's really the district attorneys.

They're the ones sitting bail now or making the determination to have someone detained because they have to file the motion and they have to do it within a certain amount of days and they have to put on clear and convincing evidence. And in Texas, I'm critical of that because in Texas, it's really the judge's job to set bail. Now the issue of detention, he doesn't have that ability until a motion's filed in a lot of instances.

But he's the one that sets bail and it's on a discretion standard and the defense can file a motion to reconsider at any time. mean, they can do it multiple times. And then any appeal is an abuse of discretion standard, which I like that a lot better. But we've now just changed in Texas. We're going to have it on the ballot in November where we're kind of going to a similar type of New Jersey plan where for a list of offenses, the DA can file a motion to detain. And then it's a

evidentiary standard, abuse of discretion for risk of willful detention, willful failure to appear, clear and convincing evidence on public safety risk, danger to the community. I've always said that I trace that language always back to New Jersey and I don't like that because I would prefer the judges to be responsible for setting bail, not the district attorney because in that situation,

Louis Casadia (23:45.336)
sounds like New Jersey.

Ken Good (23:59.266)
The judge is not determining whether really this person needs to be in jail or not. He's determining whether the DA met his standard of proof. And I don't like that.

So yeah, I I would say that it obviously the court decides at the end of the day whether to detain the person.

Yeah, but on appeal it's going to be whether the DA matters clearing convincing evidence standard.

Well, on appeal, it's whether the court abuses discretion in finding that they did this s***.

It's still an abuse of discretion standard even though it's

Louis Casadia (24:30.358)
Alright, so they're gonna review that. They're gonna review that.

Correct on whether they met the clear conviction evidence standard that would be reviewed de novo wouldn't it and if they didn't then that would be an abuse of discretion

So they're reviewing it basically like not many people win an appeal over detention hearing as long as the court is setting out like specific facts of what they're relying upon to detain the person and those facts are within the realm of things they can consider like generally speaking they're not going to grant an appeal. The time you're going to win an appeal is more when you you get somebody who's got no history, he's got no other prior failures to appear, he's getting detained on these on these serious charges.

And, you know, the appellate court may say, look, like you didn't have enough basis to detain him because you can't just detain him because he's charged with serious crime. So like, you'll see that happen sometimes. But generally speaking, they're really, they give a lot of discretion to the trial judge. And I would disagree to say that the state gets to decide who has bail, who doesn't have bail. But what I will say is, that from county to county, the prosecutor's office's decisions on the types of cases that they file on, they set the culture.

of those hearings. And so now you, you know, you, you know, for example, if you're in a county where like they never filed a detain on like a theft or shoplifting and now suddenly you have a shoplifting getting filed on in front of a judge in that county, there's a really good chance that person's not getting detained because, you know, it's been accepted that in that county at least like, well, we don't really file on those types of cases. So like that's less likely to be detained on that case.

Louis Casadia (26:10.092)
Now, you know, but in other counties though, where maybe they file on shoplifting more often because they don't have as many cases going on now, that's a norm. And so you're more likely to get detained on those cases because of that. And that's, you know, that norm is, is set by the prosecutor's office to some extent. know, depending on who the judge is and how long they've been on the bench and, know, how favorably they lean towards

Okay, so is my last question on the New Jersey plan. So, since it seems to be mirrored on release or detain, which is similar to the federal system, and you my wife is also... Wait, wait, wait. The federal system, my wife is very familiar with that because she's also an attorney, but she's a staff attorney for a United States magistrate judge. And on the federal system, there's all these presumptions. So there's a presumption for detention. Like if you...

They basically copy and pasted the fact.

Ken Good (27:04.32)
were charged with a federal crime and you were an illegal alien, there would be a presumption that you're a flight risk. And then there's certain crimes like, probably a lot of drug crimes where there's a presumption in the neighborhood of detention. Are there those presumptions under the New Jersey plan?

Yeah.

Louis Casadia (27:22.146)
So there are presumptions that are off the top of my head, I can't think of any that aren't based on... Well, actually there are. So most of the presumptions are based on the type of charge. So like, for example, like homicide, there's a presumption. Another part of it is there's a presumption on it. If there's a charge where you could get life in prison, even if it's like the maximum sentence you could get, there is a presumption that you would be detained.

What establishes the presumption? Case law or statute?

statute. They specifically outlines when the presumption applies.

Say we don't have that in Texas and we've got a constitutional amendment that's passed and we're going to have it on the ballot, which is going to be very similar, but without any presumptions. if we're going to do that kind of system, then why don't we have those presumptions as well?

Yeah, mean, I, you know, definitely there are certain things that probably should have a presumption because you're dealing with,

Ken Good (28:16.942)
But don't say that, you're the defense attorney now, so no...

You should have a presumption.

Yeah, but, but, but, you know, at the end of the day, realistically, even without the presumption, I can't imagine a situation where a defendant gets released out of detention hearing for murder or something like that.

Well, but here's the-

But you know, the New Jersey plan was kind of mirrored loosely upon something similar in what they use in Washington, D.C. I mean, I've talked to a guy that was in charge of that system for a while, and I've talked to people about the New Jersey plan. The problem, or the thing that's kind of similar to both, is the cost, the high cost that carries. The guy I talked to in D.C. said that if they were gonna look at adopting that program today, it would never pass because of the cost.

Ken Good (29:01.974)
I'm not sure New Jersey today, would pass knowing the costs that have been spent on that. But like I've said already once, know, these bell reforms and these bad bell reforms were seen across the country and the way they're being implemented in our urban areas. They're not doing any type of supervision organization to go with it because of that cost. They don't want that. So what we're seeing is what I call simple release. You're being released without any supervision. And I think that's dangerous. And I think, you know, one of the lessons from the New Jersey plan and also from the DC model is.

If you want to replicate any way possible, anywhere close to possible, what the private industry does, you can do it, but at great cost. So when you replace it with none of that, well, why would you expect anything but a lot worse result?

tell me a little more about the Texas model that they have right now. you said, think you mentioned before that there are certain presumption charges where like, what is it they have to have a cash full bail?

Well, they would set bail and you're not eligible for a personal bond. Texas, the judge can't decide what kind of bond you're going to have. He just sets bail at a thousand dollars bond and you decide whether you're going to post cash and a thousand dollars or where you're going to go hire a surety. then, and there's a list of offenses that you can't have, you're not eligible for a personal bond. And there's a reason for that. You know, during COVID, we had one of our counties, Harris County, which is Houston, decide they want to

So certain offenses.

Ken Good (30:31.564)
you know, empty out the jail and they're a more progressive county because of the COVID and they were releasing out really dangerous people or people charged with really dangerous crimes. And so the governor stepped in and he issued executive order 13, limiting the use of personal bonds for those type of offenses during COVID. And then in the next legislative session, they kind of codified that.

And the reason why they did is because the executive order was litigated to the Fifth Circuit and to the Texas Supreme Court, and both courts upheld it. And so they codified it because they weren't worried about getting sued about being alleged that what they did was unconstitutional because it had already been litigated.

So in Texas then, if you're charged with something that isn't under that list of presumptive charges, like...

But not on the list of a prohibited personal bond or that prohibits a personal bond.

Yeah, so if you're, if you're, you can't get a personal bond if you're, if you're charged with one of those crimes. If you're not charged with one of those crimes, who does, how does it get decided whether you get the personal?

Ken Good (31:38.638)
You know, a lot of that's going to depend on where you're arrested because, you know, we probably only have five counties that have personal bond departments, which would be able to provide some supervision. the majority, I mean, the vast majority of the state doesn't have that. so, I mean, any, the court can grant you a personal bond. And I think the judges are taught they need to be granting more personal bonds. But according to the most recent OCA report, which is OCA is the Texas office of court administration.

83 % of all releases in the state of Texas are cash or surety, is mostly surety.

So basically the court at a bail hearing, if it's not a presumptive charge, decides whether or not you can have a personal bond or if it has to be a right, like a,

I I would say majority of them, just set bail. then, and I would encourage judges, don't, you know, not very many listen to me, but I would encourage even in urban areas, I would say set bail and let them have that for 48 hours and then come back and decide who, if you're going to grant a personal bond to people. And the reason why is because the failure to a peer rate is so much higher on a personal bond because you don't have that supervision. Nobody's reminding you to go to court. And you know, these are the little problem, little

Johnnies and Sarahs, and so they do need supervision and help to get to court. And so why would you give them something that already has a 50 % or higher failure to appear rate? I wouldn't do it. If I was a judge, and I always wanted to be a judge when it came time to apply to be appointed or whatever the process is in Texas, I'm too hyper, and I thought I'd be bored, so I didn't do it.

Louis Casadia (33:21.388)
So basically then, the court either decides if you're going to get a personal bond or not. And then the next step is they set a bond and then they can't control how you pay that bond. They can't say you can't use a surety. That's not.

I cannot do that. mean, I would say they initially set a bond and then after they set it, they decide whether you're going to get a personal bond.

So Ken, like having, know, being knowledgeable in all these different, you know, bail structures in different states, like if you were, you know, president of the world, how would you have bail?

You know, think people would, you know, these people that are the advocates for change would say shock of all shocks can work with the industry. And so he's going to argue that judges should rely more on the private industry. But, but I will tell you, honestly, I mean, there's, there's a, there's a lot of reasons why I would say that, but let me give you two reasons why I think courts should rely more on a private Shirty bail than anything else. We've got a case called Sanchez versus Alabama, which was

a bail reform case where the local county was imposed. They were required to live under preliminary injunction for four years and they had to release everybody. And during that time period, they couldn't hold anybody accountable for failing to appear. Crime started going up. You know, people saw that as a green light to commit more crime. Well, it got reversed. And so they could go back and re-implement their old system showing defendants, if you don't show up for court,

Ken Good (34:49.656)
we're going to hold you accountable. There's going to be consequences. so within about six months of going back and implementing this system, crimes are going down. So I think we know how to defeat crime. And the other thing that I would highlight is during COVID, there's Yolo County in California kept all their data and they compared nonviolent offenders released on surety bond versus released on simple release, whatever their version was. And they found that

The comparison was stark. Someone released on a surety bond and someone released on a simple release. The person released on simple release had a 200 % greater chance of being rearrested on a violent offense over the next 18 months versus somebody released on a surety bond. I mean, with that kind of data, I don't know if I would ever release somebody on a personal bond or simple release, except for you have to have those options to protect the poor under the Constitution. I understand that. But once you have a criminal record, don't...

You're not entitled to a personal. Once you fail to appear, you're not entitled to another simple release. But I think the advocates argue the opposite.

So if, lost my question in my head here.

It's turn. But you're not my age, you shouldn't be losing my turn.

Louis Casadia (36:04.174)
So, in your world, you would have, if you fail to appear to court, that would just give the court their ability to put you in the jail until...

Well, you know, I was talking to some I was debating that today and I don't think it takes that but it takes consequences. I was talking to. Well, in Harris County, they the consequences would be you fail to appear for court. You get another personal bond 18 times and they never change the amount. I think that's an example of no consequences. I think an example of consequences would be.

What would consequences be in your po-

Ken Good (36:42.83)
Your bonds $100 so you fail to appear your next bonds $200 and I wouldn't let you have a personal bond if a personal bond doesn't work and you fail to appear well, then you're not entitled to a second personal bond because why would you Continue what didn't work the first time? But I think and you know, this is the great debate For a misdemeanor if you fail to show up five times

I think the court should have the authority to say, enough's enough. You can't give me any assurance that you're going to show up for court, so I'm going to hold you till your case is resolved. There are people in Texas that would argue that you can't do that for a misdemeanor. And I want to have that debate because I think a judge has the ability to control his own docket. And the whole purpose of bail is to give the court assurance that you're going to show up.

And if there's nothing that you can do to give the court assurance, then I think the court has the right to hold you.

Yeah, I mean look when I was a that was a problem when you had people who were on a summons which was basically the equivalent of a personal bond because you know there was

Nothing. It's not even that because it's just a citation to show up for court.

Louis Casadia (38:00.406)
Right, and then if they didn't show up, they'd end up getting a small monetary bond, which would usually, when they were brought to court, be reduced to nothing and they'd be released again. And I had one, I remember one case, we did the circle like about five times and they didn't show up, they got picked up, they'd be back in court five days later, released back and then eventually she picked up a new case and she got detained on that one, but it wasn't until then.

Isn't that too great expense to the county when they're doing this cycle of arrest? mean, they're just arresting the same people over and

That is definitely not objectively a good thing for the state when that happens. could have resolved that case pretty quickly if she just showed up to court. She ended up getting probation. It wasn't a super serious case, but can't do anything if she doesn't show up. And then by the time she did show up, she had a second case.

What

Ken Good (39:01.358)
Well, and that's a good point because, you know, I think people don't realize that when you don't show up for court, you know, your case gets put on hold until you come back. mean, in criminal cases, there's very few exceptions that allow the court to go forward without you present. I mean, the one I can think about is you're there for jury selection and they start the trial and then decide to run because you don't like the jury or whatever. That's, know, they can try you an abstention in Texas, but most things

when you fail to show up, your case gets put on hold till you come back. And that's one of the reasons why I'm really critical of the California system, because they release all misdemeanors on these simple release, but they also overlay on top of it a very strict time period for trying cases. And so if you fail to show up, they can't make you really, because it's a misdemeanor. They don't extradite across state lines. And if you can stay gone for that length of time, they'll dismiss your case.

I think that's a bad, bad system.

want to circle back to something you said before about how the numbers went down between, well, how there was a big disparity between the surety bonds versus the personal bonds. Why do you think there's such a gap there? Like, why is it that having the-

Why is the failure to appear rate so much different? Well, think there's a lot of reasons why. I mean, think the bigger, the better question is, I'm not being critical of your question. I think the question really should be, why is the failure to appear rate for the private industry so low? It's less than 10%. I mean, when you get to cash bonds, it's twice that. And when you get to personal bonds and it's at least 50 % and you know,

Louis Casadia (40:21.622)
Yeah, what is your opinion?

Ken Good (40:45.358)
According to HarrisCountyCourtWatch.com, it can be as high as 80 % because that looked at two years worth of data. I think the reason why a personal bond's failure to appear is so much higher is because there's no one reminding them to go to court. I mean, when you have court reminders, it will reduce that. But I think also the private industry does not get credit for family involvement. Usually the private industry is dealing with your family.

And if you, you you've been arrested five or six times and your family is still coming to us to bond you out, that says a lot. You know, it's, it's essentially, you know, the family saying, you know, I believe in you still, you can turn this around. And so when we're reminding you to go to court and your family's reminding you to go to court, I think that has a big impact. And when they've, you know, stood up for you and posted a bond for you, I think that has a big impact. And I think.

One of the criticisms I have of just using more personal bonds is we're killing families' opportunities to turn their loved one around.

That's an interesting point. would say, you know, building on that, similarly, like people who hire private attorneys, they tend to show up to court. mean, even just when I was a prosecutor, like if someone had private attorney, like it was at a point where if someone didn't show up,

on a court date that they had and we saw that they had a private... Someone must have made a mistake. know, relist that. Relist that out. Like, that was something happened there. You know, there was a... Yeah, like, I mean, I think... And I think it goes to that. I agree with you on that. That there is a... well, frankly, especially now doing the other side, like, a lot of times people get help paying for a lawyer, you know, and they, you know, they owe it to their family member that they at least show up.

Louis Casadia (42:38.434)
Because if they don't show up, ultimately what happened is, and the rare times that it happened where they didn't show up to court and they had a private attorney, private attorney would get out of the case. And now they just spent that money for nothing. And that's the same thing that happens if you don't show up and you have a surety, you just spent that money for nothing.

Well, and I think that this is a great point that you could apply in so many different areas of society. know, urban areas, the breakdown of families. In the urban areas, we have huge dropouts in schools. We have humongous drug abuse problems. And it's all, you could trace it all to the breakdown of families. And so when there's a family, when the family's involved, it's a built-in support system.

The government cannot recreate that. mean, I think one of the, could argue that one of these reasons why we set up this, everybody has a right to an attorney and we have all these public attorneys offices. It's an attempt to recreate that. And you could also look to schools and say, well, we're, we're going to pass whether they really should pass or not. We're going to pass everybody because if they drop out of school, that increases their chances of going to prison, but it ends up dumbing down the entire class. so even if you

were arguing that these were had good intentions, these programs, they can never create what the private industry, what private defense attorneys can do. And they actually in those situations, I would argue, especially in the criminal justice end up putting the defendant in a worse position than he would have been otherwise. And I think the personal bond is is such a great example of that. Because imagine, you know, if we have accountability, how their situation changes if they fail to appear twice. They may end up being in jail.

they may have a much higher bond. And so they may get scared and run. And so their situation progressively gets worse, I think, on a personal bond where they are not doing what they're supposed to do versus being on the private industry. And I think the same argument could be made on a private defense attorney versus a public defense.

Louis Casadia (44:33.55)
What would your response be to the critics of the bond system? The main criticism is that some people just don't have the funds to even pay assurity. They don't have the funds to bail themselves out. And that was when they changed the law in New Jersey. A lot of the people who wanted to

or proponents of the new law. think that was the big argument is that you have all these people who are in jail on these low level charges. They can't afford these low, know, bond amounts because they just don't have any money. What is your response to that?

Well, I have a bunch of responses, but let me start with, I think it's a myth when you say there are lot of low-level nonviolent offenders stuck in jail, first-time offenders. I think that's false. mean, I don't think that was ever true, but I don't think it's true at all today. We don't have first-time offenders on low-level misdemeanors stuck in jail. And you know that's not true in New Jersey because they would just get summons.

But your jail population probably hasn't changed now. It's probably slowly gone back up to what it was before bail reform. The other thing that I would argue is we have systems in place to address that for the truly poor. If you're a first-time offender and you're poor, that's why we have personal bonds. They're required if they say they can't afford something and the court can take into consideration a list of factors. But then I reject that argument for so many things. If you've got a criminal history, especially a long one,

You're not in jail because you're poor, you're not in jail because you can't afford the bond, you're in jail because the court feels like that bond is what needs to be set for public safety. And if you can't afford that, it's not because you're poor, it's because of your criminal history. And at that point, I don't think you have a right to be released at

Louis Casadia (46:23.267)
So then aren't we just back to what New Jersey's doing then? They're just deciding whether someone should be detained or not detained? Because if...

I don't believe it at all. No, I think the New Jersey plan is a terrible plan and it's not a model for other states. And since the New Jersey plan has been enacted, no other state has looked towards it and tried to mirror it because of the great expense. I mean, the reality is the alternative to the New Jersey plan is released without any supervision. And that is a terrible alternative. And I would say that's what they've done in New York and they've had rising crime as a result. That's what they...

And they've rolled it back three times now and they probably roll it back again and that's what is the end result in California and that's what saw crime go crazy because they decided to quit prosecuting theft under nine hundred and fifty dollars. Crime went a muck and property values in our commercial buildings went started bottoming out and so now Gascon was defeated. He was massacred in the last election as a result.

just to circle back to the low level bonds that you see in some cases. Obviously, I know you're not a fan of the New Jersey system, but it's setting aside the cost, because I really can't comment on the cost. I don't know anything about that. But if we're just talking about...

the impact and the policy side of it, which is essentially that, well, in New Jersey, you're either gonna be detained or you're not gonna be detained. And there's certainly like a whole category of things that you're just not gonna be detained on. If we have a monetary system where you have people who have some history and probably have some history of not appearing, aren't in the more serious category, but they have some bail, like they have, you know, maybe a low level bail, thousand, $2,000. If you have those category of people,

Louis Casadia (48:14.018)
who among them can't afford any amount of monetary bail at all. How does that differ from the New Jersey system in those circumstances? mean, are you essentially you're setting a monetary figure that they can never achieve for an offense that in the New Jersey system, they wouldn't be detained at all. you know, what would your response be to that?

Well, I I think that for a thousand dollar bond, I mean, that means you can't come up with a hundred dollars to post bail or you can't get a bondsman to agree to do a payment plan. So I don't see that a thousand dollar bond, a payment plan on a hundred dollars is an impediment for anyone getting out of jail. so for that impediment to be, I mean, I just don't see that. And so I think that's a false narrative because you hear this from the advocates for change.

and they just use language that is intended to cut off debate. I did a debate with someone from Civil Rights Corps and they were like, jails are cages and nobody should be in a cage. Well, I'm like, you know, we can't really have a debate and talk about what works and what doesn't work when you're using toxic language to cut off debate and when you can't respond to me on an argument, you call me racist. So, I mean,

We have stuff that works and stuff that doesn't work with every system. think the problem with the new, well, one of the problems I've already mentioned others with the nutrition plan, your jail eventually gets to be at the same population it was with a lot more dangerous people. You can't ever hold any misdemeanor. Most of the time they just reach a summons. They're never taken into custody. And where we're seeing this in other places where this is being done, it creates great backlogs because the higher the failure to appear rate,

cases get put on hold, the more, the bigger the backlog, the bigger the pressure to dismiss cases. Dismissing cases is, you know, another way of saying decriminalization. And criminals see that as a green light to commit more crime. And probably the best example I have of that is in Harris County, they decided to quit prosecuting catalytic converter theft. organized crime figured out you can make thousands of dollars from one catalytic converter.

Ken Good (50:30.838)
And so if you're not going to prosecute for the theft of catalytic converters, you've got a whole cottage illicit industry that will develop overnight because they can make millions and millions of dollars very quickly off of those catalytic converters.

Ken, we're at our hour mark here. Do you have any closing remarks you'd like to make?

Well, if people want more information about me or my group, can go to PBTX.com. That's the professional bondsman of Texas. We have a blog where we highlight important criminal justice stories, but we also have our own podcast. There's a link to our on it on our menu, but you can also go to thebellpost.com. Thebellpost.com. All we talk about is criminal justice issues. We have a whole episode on the New Jersey plan. So that's how I learned about.

what New Jersey's like. And so it's nerdy stuff. It's not a big audience. We're seeking to educate lawmakers and the public on what works and what doesn't work. And so we have fun doing it, and that's it.

Ken, thanks for coming on. Have a great rest of your day and good luck on your fighting the Texas Bail Chains that sound like they're floating out there.

Ken Good (51:46.762)
Thank you,