America’s incarceration systems, both jails, and prisons are in dire need of reform. This past year, we have addressed many wide-ranging need for reform throughout the nation’s criminal justice system from arrest through incarceration (herehere, and here). We would like to close this year with a call for reform of the nation’s bail system, particularly in Texas and especially the issue of cash bail.


COVID Crisis Illustrates Need for Reform


The Covid-19 pandemic’s impact on incarcerated populations in prisons and jails across the country illustrates the need to eliminate cash bail. It is long past due to replace the current wealth-based system with a risk assessment system that accommodates the constitutional requirement for equity among criminal defendants while simultaneously protecting societal safety concerns. Many legal experts now see this reform as necessary to satisfy the U.S. Constitution’s prohibition against excessive bail and its’ guarantees of due process and equal protection.


The Marshall Project recently reported that by December 1, nearly 226,000 incarcerated people in this country had contracted the COVID virus. Roughly 1600 of these infections resulted in the death of the incarcerated. We suspect that the death number is much higher because jails and prison healthcare delivery systems are underreporting COVID deaths.


Texas leads the nation’s incarcerated systems with more than 26,000 COVID infections and roughly 1230 deaths—80 percent of whom were housed in jails and had not been convicted of a crime. Many of the incarcerated people impacted, either with infection or by death, were innocent. They were either languishing in jail under an excessive cash bail or were in a penal facility after accepting a plea agreement with a reduced sentence to free themselves from indefinite detention under an excessive cash bail. 


Compassionate Release Used a Political Tool


This tragic reality does not disturb Texas Gov. Gregg Abbott. 


The Houston Chronicle reported this past March that, as the COVID virus began to worm its way throughout jails and prisons across the state, incarcerated people in the Harris County Jail sent out a disturbing letter that warned the public about the deadly impact the virus would have on them. In response to the public health emergency, Harris County misdemeanor judges, and other judges across the state, began to release misdemeanor and nonviolent offenders on personal recognizance bonds. 


The governor, and his out-on-personal-recognizance-bond sidekick, Attorney General Ken Paxton, moved quickly to end that compassionate response to the virus. Abbott responded with a March 29, 2020, executive order that hobbled misdemeanor judges and other statewide country officials from releasing misdemeanor and low-level, nonviolent offenders on personal recognizance’s bonds. The criminal attorney general also responded with court litigation to block the bail releases.


Abbott, who has been a stalwart supporter of the criminal enterprise President Trump has run out of the White House the past four years, and the indicted Paxton could not care less about the plight of the incarcerated. That innocent incarcerated people, primarily people of color, would become infected, some of whom would die, was nothing more than a badge to prove their “tough on crime” bona fides. Cash bail reform failed in the 2019 Texas Legislature, mostly because of opposition from these two officials.


Bail Reform Faces Opposition In 2021


Bail reform again faces an uphill battle in the 2021 Legislature. The Texas District & County Attorneys Association has already pre-filed nearly 800 bills with the Legislature, 33 of which would create new crimes and 17 would increase the punishment for existing crimes. This is not a receptive environment for meaningful criminal justice reform, the George Floyd Act filed by Rep. Senfronia Thompson and Sen. Royce West notwithstanding. 


With more than 2,000 criminal offenses on its books, Texas is a” law-and-order” state not generally receptive to criminal justice reform. Reform is especially difficult when it runs against the grain of special interests groups—like the bail bond industry, the Alliance for Safe Communitiesjudges who depend on political contributions, law enforcement agencies, and Gov. Abbott and his law-and-order political cohorts.


Bail Reform Gaining Steam Across Country


Legislatures in states like California, New York, Kentucky, New Mexico, New Jersey, Illinois, Nebraska, and Indiana have all undertaken efforts to reform their cash bail systems. But it has not been a smooth road to travel. Some of the laws were overturned by voters, which ocured in California, or vetoed by governors, as happened in New York. These setbacks demonstrate that the corrupt cash bail system has deep pockets and the political influence necessary to thwart meaningful reform in most states. 


System Built on Inequities, Operates as Designed


That is the tragedy inherent in the cash bail component of the nation’s criminal justice system. As Nancy Fishman, project director of the Vera Institute of Justice Center on Sentencing and Corrections, described the tragedy:


“[If] the only thing that distinguishes the people who are innocent on the inside and the people who are innocent on the outside is money—the ability to pay—then you have a system that is built inequities.”


These inequities most impact people of color, women, and people who lack the financial resources to make cash bail. The cash bail bond system creates a situation where violent, repeat offenders with financial resources can secure pretrial release through cash bail. In contrast, a first-time nonviolent offender must languish in custody because they cannot afford to post cash bail.


In effect, the quality of justice a person receives in America is, more often than not, determined by the wealth, or lack thereof, they possess. 


Trend is Towards Profits Over People


And the future does not offer much hope for change. Since 1986, the states and the federal government have increasingly turned to “for-profit” prisons to house their incarcerated people. These for-profit prison corporations—such as Core Civic, the GEO Group, and Management and Training Organization—are drawn to prisons because they have guaranteed income so long as the prison beds remain filled.


Traditionally, this privatization trend was not popular with jails, whose incarcerated populations are fluid. 


That lack of interest in jails by for-profit prison corporations, however, may be changing. The Great American Insurance Group reported in November 2020 that local governments are finding for-profit prison corporations more viable for handling their jails:


“While County and local jailing facilities may outsource certain services (e.g., medical, corrections, etc.), its full privatization has been limited to state prisons driven primarily by the length of incarceration at the state and federal level (i.e., vs. local). However, full privatization may be considered at the local level for the majority of states. While it is difficult to determine whether there will be a significant trend towards building private facilities, more states are seeing local jurisdictions considering private options, including several Pennsylvania counties. Jurisdictions with multiple jails may also consider privatization of only a subset of their facilities. Public entities are reviewing all services provided to determine what elements can be outsourced to private entities. The largest considerations are health care and food services for almost half of all state prisons and jails utilizing private healthcare in 2016.”


For-profit jails have no incentive to see people released from custody. If a person is arrested, regardless of the offense, “for-profit” jails need them to remain detained because their continued detention translates into more profit.


Thus, the prospect for bail reform, especially with the cash bail system, does not look promising at the moment, but the fight for reform must continue. The “justice” in our country’s criminal justice system depends on it.  Most struggles for justice and equality are long and hard. Bail reform will prove no different.