The Texas Tribune recently reported that the Texas Legislature will once again take up the politically controversial issue of bail reform. Bipartisan legislation introduced by State Sen. John Whitmire, D-Houston, and Rep. Andrew Murr, R-Junction, would, reports Tribune writer Jolie McCullough, “implement a risk-assessment tool for judges to use when making bail decisions, among other proposals. Joining them in support of the legislation were the state’s two top judges, Texas Supreme Court Justice Nathan Hecht – who has publicly called for a change to Texas’ system for years – and Court of Appeals Presiding Judge Sharon Keller.”


The need for bail reform in Texas is a subject we have tackled on many occasions (here, here, here, and here). Last year we wrote that, “In a sense, bail has become a privilege of wealth. People with financial means can secure release from jail, unless their criminal charge is so serious as to create a risk of flight or dangerousness to the community. Those posting bail effectively enjoy that presumption of innocence while those unable to afford bail live through detention with what is effectively an assumption of guilt, serving time for a crime for which they have not been convicted.”


The current legislative “reform” interest can be traced back to the tragic death of Sandra Bland in July 2015.  The 28-year-old Chicago native was arrested for a minor traffic violation. Three days after her arrest, Bland was found hanged in the Waller County jail. She could not afford to pay a bail bondsperson the $500 necessary to secure her release under a $5,000 bail—an exorbitant amount for a minor traffic violation.


Sandra Bland Would be Alive


The following month Johnny Mata of the Greater Houston Coalition for Justice told the Houston Chronicle: “The death of Sandra Bland was a travesty of justice. Sandra Bland would be alive today if Texas would’ve had a [bail] system that is fair.”


Bland’s tragic death drew national attention to the growing demand for an end to the horrible money-bail system in place throughout most of the nation. The increasing discontent across the country with the money bail system combined with bail reform efforts undertaken by Harris County in 2016 prompted the Texas Legislature in 2017 to take up the issue.


Sen. Whitmire and Murr also filed the bipartisan legislation that year that would have overhauled the fixed schedule of the money bail system—a system that forces taxpayers to spend $900 million each year on pretrial incarceration. That bail reform legislation died in committee.


Governor’s Cry for Bail Reform Rings Hollow


The current legislative efforts, again led by Whitmire and Murr, to reform the state’s money bail system will be undermined by another “reform” bail bill being sponsored by Gov. Greg Abbott. The governor’s reform bill is called the “Damon Allen Act”, named after Texas State Trooper Damon Allen who was killed in the line of duty on Thanksgiving Day in 2017.


“With the Damon Allen Act, Texas will take meaningful steps to reform our bail system so that we can better protect innocent life, keep violent criminal off our streets and prevent tragedies like the death of Damon Allen,” Abbott said announcing the bill. “It is time for action, and I urge the legislature to take up the Damon Allen Act in the [current] session …”


Governor Abbott Would Make Bail More Difficult


The governor has never spoken about the more than 1,100 deaths in the state’s county jails over the past decade (according to the Houston Chronicle)—many of whom should have been released on personal recognizance or low money bail. That’s because the governor’s definition of “bail reform” is to make it more difficult to make bail.


Civil rights advocates and criminal justice experts, however, view bail reform through a different lens. They believe the corrupt money bail system in place in most of Texas’ 254 counties should be replaced with an algorithm-based, risk-assessment tool and release, on personal recognizance or the least restrictive conditions necessary to protect public safety and appearance at trial, within 48 hours of arrest.


The purpose of algorithm and other risk-assessment tools is to use unbiased information like criminal history, personal history and social history data to distinguish between those who can safely be released into the community through personal recognizance bail and those who pose such a risk of flight or danger to the community that they should be released on enhanced conditions of release or detained pending trial.


Gov. Abbott, law enforcement officials and prosecutors are not fond of risk-assessment tools. They favor detention of anyone charged with gun crimes, fleeing from the police, assaulting the police, sex offenses or domestic violence. They believe these kinds of individuals are prone to re-arrest and pose an unacceptable risk to the safety of the community.


The Damon Allen Act would make “public safety” the first consideration in any bail setting determination. This Act would remove any rules in Chapter 17 of the Texas Code of Criminal Procedure that limits a judge/magistrate’s discretion to, as Gov. Abbott puts it, to ensure “the safety of the community.”


Personal Discretion Leads to Inequalities in System


The problem with this law-and-order theory is that our justice system must be governed by the rule of law, not the exception to it. For example, when dealing with someone arrested for domestic violence that lives in a neighborhood like Houston’s River Oaks, law enforcement and prosecutors believe these offenders pose little, if any, risk to society. Their law-and-order concerns instead focus on the underclass, the less-than-privileged who they believe are more prone to criminal activity than the upper-class.


Opponents Against Bail Reform Line-up


With Gov. Abbott’s bill taking center stage, opposition from the corrupt bail bond industry, and opposition from the Texas Alliance for Safe Communities, the prospect of the horribly unfair money bail system being reformed by an algorithm-based, risk-assessment system is not good. The Alliance made its feelings known about the latter system with this statement:


“Algorithm-based bail policies remove these critical (bail) decisions from our elected judges, in some cases needlessly endangering law enforcement and Texans, and do nothing to support and provide accountability to defendants to ensure they don’t spiral into a cycle of crime.”


The Damon Allen Act, and the views of the Alliance for Safe Communities, attempt to ensure one thing: a continuation of a system that makes bail a privilege of wealth; a system that pressures not only the guilty but the innocent poor as well to accept forced guilty pleas or suffer prolonged incarceration pending trial. “Tough on crime” judges, and the corrupting bail bond industry that keeps them in office, wholeheartedly support this status quo.


It is time for real bail reform.  Texas law should be amended:


Require pre-trial release on personal recognizance the presumption for all defendants charged with non-violent offenses, who have little or no criminal history;


Require immediate release of low-risk defendants under the lease restrictive conditions necessary to guarantee appearance at court proceedings and to protect safety of public and victims;


Require all judges to use automated, pre-trial risk assessment system designed to release low-risk, non-violent defendants within 48 hours.