‘Let the jury consider their verdict,’ the King said, for about the twentieth time that day.
‘No, no!’ said the Queen. ‘Sentence first – verdict afterwards.’
‘Stuff and nonsense!’ said Alice loudly. ‘The idea of having the sentence first!’
‘Hold your tongue!’ said the Queen, turning purple.
‘I won’t!’ said Alice.
‘Off with her head!’ the Queen shouted at the top of her voice.-Lewis Carroll, Alice’s Adventures in Wonderland, Chapter 12
Increasingly, not just in Texas but nationwide, more and more punishment of criminal defendants, particularly those accused of misdemeanors, occurs pretrial before any adjudication of guilt. In many misdemeanor cases, defendants are arrested and placed in the county jail where, if they cannot make bail, they wait until the court processes their case. In countless instances, defendants are allowed to plead to time served or receive probation when they finally get to court, meaning their incarceration pretrial was the only time they’re locked up for the offense. As of March 1, according to the Commission on Jail Standards monthly report (pdf), pretrial detainees made up 63.6% of Texas county jail inmates. By contrast, just 7.8% of local county jail inmates in Texas as of that date were serving sentences after a conviction.
The evolution of punishment from post-conviction to pretrial was never a conscious decision by lawmakers, but instead was a function of an array of peculiar incentives for various institutional actors. E.g., judges and prosecutors who want to move their dockets have incentives to support bail in low-level cases because a defendant stranded in jail has more incentive to plea bargain than someone living at home with their family. And in many counties bail bondsmen are politically powerful and one of the few interest groups besides attorneys who donate regularly to DAs’ and judges’ campaigns. But increasingly, as pretrial punishment has become the norm, some prosecutors are beginning to shift the full panoply of state punishment onto as-yet-unconvicted offenders through pretrial release conditions. A good example of this shift arises out of Bexar County regarding DWI enforcement, as reported in the SA Express News (“County steps up DWI crackdown,” April 4):
In fiscal year 2011 there were 9,289 DWIs, with 5,457 of those cases new. Twenty-five percent of the Pretrial Services Office’s cases are DWI offenders, and District Attorney Susan Reed’s 24/7 “No Refusal” program is increasing the number of arrests and convictions.
The Accountability, Compliance and Enforcement (ACE) program will intensify pretrial supervision of DWI offenders through screening and the use of several technologies. Pretrial services officers will work with Reed’s office and the court to make no alcohol use a condition of bond for second-time offenders.
Accountability will be held through increased supervision, starting with a psycho-social screening and assessment and followed by specialized supervision, which includes mental health and/or substance abuse treatment, counseling and mandatory Alcoholics Anonymous meetings.
To monitor the compliance with bond conditions, offenders will be outfitted with one or more of the following:
• ignition interlock with a camera.
• ignition interlock with GPS.
• in-home alcohol monitoring unit.
• wireless remote alcohol testing.
• SCRAM (Secure Continuous Remote Alcohol Monitor.
• CAM/GPS (Continuous Alcohol Monitor).
The DWI enforcement unit of the Bexar County Sheriff’s Office will help with enforcement by verifying the defendant is operating the approved vehicle with ignition interlock, and arresting defendants who violate the bond conditions.
Those read like probation conditions, but in fact they’re conditions of release on bail for people accused of a Class B misdemeanor, the lowest level misdemeanor which can be punished with jail time (but which seldom is). I’m sure there is a legal excuse for pretrial punishment, but like the quote from the Queen of Hearts in the epigraph above – “Sentence first – verdict afterwards!” – it turns the historic role of punishment on its head in a way that borders on absurdity. Why even bother with trials or plea bargains when punishment comes first?