The Texas money bail system is hopelessly corrupt, economically discriminatory and patently unconstitutional.
Like in most state legislatures, individual lawmakers over the past several years in the Texas Legislature have attempted to reform the state’s antiquated money bail system but to no avail.
In 2017, some lawmakers (most notably Sen. John Whitmire, D-Houston and Rep. Andrew Murr, R-Junction) tried to replace the current money bail system—referred to more often by criminal court judges and the bail industry as a “fixed schedule” bail system—with a pre-trial risk assessment” system that would have allowed many defendants charged with minor or non-violent offenses to be released on a personal recognizance bond.
75% of Jail Population Not Dangerous, Cannot Afford Bail
That effort failed, despite Texas Supreme Court Chief Justice Nathan Hecht informing lawmakers that 75 percent of the people locked up in the state’s county jails—all of whom are non-dangerous—were being detained before trial simply because they could not afford the cost of money bail.
“Though presumed innocent, they lose their jobs, families, and are more likely to re-offend [because of it],” the Chief Justice told lawmakers. “And if this weren’t all bad enough, taxpayers must should the cost. A staggering $1 billion a year.”
Ethics in Politics Rare Commodity
Fundamental logic and commitment to doing the right thing are rare commodities in the Texas Legislature. Politics is the name of the game where political contributions and insider influence control the decisions by state lawmakers.
Due to heavy opposition from the money bail system and members of the law enforcement community, the 2017 bail reform measure passed the Senate but died in the House.
Meanwhile, that same year money bail systems were reformed in New Jersey, Illinois, and Alaska; and the Fifth Circuit Court of Appeals declared the money bail system in Harris County, Texas unconstitutional.
In August 2018, California lawmakers passed legislation that got rid of the money bail system in that state. District Attorneys in Chicago and Philadelphia announced they would not seek bail in a wide range of offenses.
Against this nationwide money bail reform backdrop, it was widely believed by many in the state’s criminal justice system that the money bail system would be reformed in the 2019 Texas Legislature.
There was good reason for this belief.
Harris County Democrats Makes Local Reforms
During the 2018 mid-term elections, Democrats ran the table in the Harris County judgeship elections, replacing every Republican to occupy all of the 59 judgeships in the county. Many of these Democratic judges ran on platforms to reform the unconstitutional Harris County money bail system.
This past January these new Harris County judges reached an agreement with U.S. District Court Judge Lee Rosenthal—who has the county’s money bail system under his review due to a lawsuit challenging the system—that introduced a significant reform to that system by allowing 85 percent of all misdemeanor defendants to be released without bail.
Negotiations are still underway to reach the same or a similar agreement in felony cases.
Legislators, Governor Not Swayed
These local and national reforms efforts, however, did not convince the Texas Legislature to do the right thing.
Lawmakers in the 2019 session were torn by two opposing forces: those that wanted to replace the current money bail system and Gov. Greg Abbott’s forces that want to make it even more difficult for dangerous offenders to secure bail.
In a May 9, 2019 report, the Texas Tribune described the source of this conflict:
“House Bill 2020 was one of several bail reform measures filed this year after federal court rulings, jail deaths and a state trooper’s murder drew attention to Texas’ pretrial jailing practices after the last legislative session. The bill’s author, state Rep. Kyle Kacal, R-College Station, said he worked in coordination with Abbott’s office on the measure, but it has changed significantly since it was filed in March. One of the most notable revisions is that it no longer puts the power over systemic bail changes under the governor’s office. A spokesman for Abbott did not respond to repeated requests for comment on the bill.”
It should be pointed out that some lawmakers, and virtually all bail reform proponents, were not satisfied with the so-called “reform” intent of House Bill 2020. The Tribune put their dissatisfaction this way:
“Some bail reform advocates have also criticized the bill for still relying on money bail instead of presuming release on no-cost bonds for nonviolent defendants. At a hearing last month, the criminal justice advocacy group Texas Fair Defense Project claimed the bill at that time didn’t adequately address federal court rulings that called for individual bail hearings within two days of arrest and said Harris and Dallas counties’ bail practices kept people in jail simply because they were too poor to pay their bonds. The organization also said the bill’s requirement of a risk assessment would prohibit judges from automatically releasing from jail most misdemeanor defendants on a no-cost bond. Newly elected judges in Harris County adopted that practice amid legal woes the county faced from the federal ruling.”
Legislators from Both Sides Fail Bond Reform
House Bill 2020 passed out of the House with an 83-51 vote, but died in the Senate—and, at the end of the day, that was probably a good thing because the bill’s reform only benefited the law enforcement community. The bill did very little, if anything, to address the fundamental inequities of the state’s corrupt money bail system that discriminates so heavily against the poor and all people of color.
Texas must pass comprehensive bail reform that demands presumption of release for all non-violent offenses, especially for first time offenders. This would be a significant step to stop punishing people who have been convicted of no crime but cannot afford the cost of freedom.