The COVID 19 pandemic (“pandemic”) taught the American criminal justice system one thing: the nation’s cash bail system is a for-profit practice that has nothing to do with public safety.
In the half dozen years preceding the pandemic, at least a dozen states had undertaken reforms of the cash bail system. Those reforms did not diminish public safety.
The start of the pandemic in the spring of 2020 forced states nationwide to release more people packed in their jails because of fear of an increased spread of the pandemic.
Those release decisions had nothing to do with “bail reform.”
At the same time the increased bail releases were taking place country the county, the homicide rate began a sharp increase in virtually every major city, and even mid-sized cities, in the nation.
Law enforcement sources and conservative politicians—like Texas Gov. Greg Abbott and Harris County District Attorney Kim Ogg—began a politically motivated campaign to associate the rising violent crime rate with “bail reform” releases without offering a shred of evidence to support to claims.
What we now know, through proven data, is that indisputable evidence released in February 2022 shows that there is no correlation (nor has there ever been) between increased bail releases, either through reforms or pandemic necessity, and the spiking violent crime rate.
Self-serving politicians like Abbott and Ogg want to link “bail reform” to the current violence crisis to cover their own political ineptitude at governance.
And, of course, there is the fact that the corrupt cash bail industry system spreads a lot of money around at election time. That alone is sufficient reason for some politicians to keep that system in place.
Generally, politicians who favor cash bail fail to acknowledge the truth of the system.
The cash bail system keeps the poor and people from the most financially marginalized communities in jail following an arrest. It also allows financially able defendants to post cash bail regardless of the severity of the allegations or their criminal history.
These two realities join politicians like Abbott and Ogg at the hip.
These politicians favor a criminal justice system that has historically displayed a stark contrast in the quality of justice between wealth and poverty.
The undeniable fact is that the nation’s criminal justice system favors wealth over poverty. Some will argue that it is a natural and legitimate byproduct of capitalism—a social premise that those who strive for and achieve wealth should have greater legal protections and enjoy more justice benefits than those who perpetually live in an economic arena that borders on insolvency.
In effect, wealth measures success, and poverty measures failure. Wealth assumes low risk, and poverty assumes high risk.
This reality has always been the genesis of the clash between these two economic classes of people throughout American history. The result is a system of justice shaped more by privilege and wealth than by due process and equality.
A cursory examination of the first two steps into the nation’s criminal justice system illustrates the point: arrest and bail.
A June 2020 ABC News report, based on an analysis of 2018 FBI data, revealed that in 800 jurisdictions across the country, Black Americans are five times more likely to be arrested than White Americans. In 250 of those jurisdictions, the arrest rate for Black Americans is actually ten times higher than white people.
Similarly, a 2018 report in The Quarterly Journal of Economics of the Harvard Kennedy School found that racial bias plays a role in judicial decisions about who will and will not be released on bail. This data confirms the reality that bail judges “are racially biased against black defendants,” whether that bias is intentional or not.
A May 2019 report for The Council of State Governments called for an end to “cash bail” in favor of a “risk assessment” bail system. The report opened with the observation that “bail, in its most ideal form, serves two purposes. First, it maintains the American ideal of innocent until proven guilty by allowing suspects to continue their daily lives as normally as possible while they await further court actions. Second, it incentivizes the accused to attend future hearings or face financial consequences.”
In the February 11, 2021, Texas Tribune, Jolie McCullough underscored the tragedic results often produced by the Harris County bail system.
According to arrest records, Alex Guajardo is a violent person. In 2018 he was arrested in Harris County for assaulting his pregnant wife, Caitlynne. Guajardo was released on a personal bond, with protective order and conditions of bond that prevented him from having contact with his wife. He was already on bail for an “intoxicated driving charge.” Two days after being released on the assault charge, Guajardo stabbed Caitlynne to death.
Juxtapose that tragedy to the travesty of Preston Chaney.
According to McCullough, this 64-year-old Black American was arrested in April 2020 for stealing meat and lawn equipment from someone’s garage. He was not released from the Harris County Jail because he could not come up with the $100 in cash needed to post bail. Four months later, Chaney, like scores of others in the Harris County Jail, died after contracting the Covid-19 virus in jail.
Meaningful, comprehensive bail reform is the only way to reduce the likelihood of such tragedies produced by the bail system in Texas. Such reforms can be achieved only by looking through a different penological lens when deciding how to handle suspects following arrest and during pretrial detention/release.
Bail reform in Texas must consider two fundamental factors: the need to protect and maintain public safety and the need to protect a defendant’s presumption of innocence and Constitutional protections against excessive bail.
The state’s current bail system fails on both fronts, as illustrated in the Guajardo/Chaney cases.
The crucial political argument surrounding bail reform in Texas focuses primarily on two ideological points of view.
Bail reformers argue that the current system fails to protect the constitutional presumption of innocence, causes unnecessary disruption to work and families, vastly contributes to jail over-population, and too often induces innocent persons to accept plea bargains. On the contrary, tough-on-crime advocates argue that protecting public safety is the overriding concern, thereby virtually eliminating bail for the financially disadvantaged while preserving the ability of the wealthy to purchase bail.
In theory, and too often in practice, a wealthy individual charged with a serious felony, like AG Ken Paxton, can post cash bail and be released in minutes. At the same time, a homeless person will spend years in pretrial detention for stealing food before their case can be resolved.
These factors notwithstanding, Jolie McCullough’s observation two years ago that meaningful “bail reform” faces an uphill battle in Texas still applies today because fear-mongering politicians like Abbott and Ogg use the word “reform” as a cause for crime, not a solution for it.
Demand from politicians like Abbott and Ogg to either keep the current cash bail system in place or increase pretrial detention reflects the systemic racism that infects every facet of our criminal justice system.
The simple truth is that most people in the state’s jail system who cannot post cash bail are non-violent, disadvantaged people of color who pose no real threat to society. In contrast, financially able people who pose a real danger to the community quickly post cash bails.
David Villalobos, a criminal justice reform coordinator with the Texas Organizing Project, told McCullough: “The way [Abbott] laid it out shows clearly that he’s far more interested in maintaining the status quo and fear mongering than really looking at our bail system that keeps Black and brown people locked up.”
Bail reform advocates must double down on their efforts to change the current cash bail system in Texas because it is the best way to protect both the safety of the public and the integrity of our justice system.