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Texas Bail Reform: An Unending Clash Between Wealth and Poverty

Mar 09 2021
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There has always been a stark contrast between the quality of justice dispensed by the American criminal justice between wealth and poverty. The bottom line is this: justice tends to favor wealth. Some will argue that it is a natural and legitimate byproduct of capitalism. This social premise is rooted in the mindset 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 homelessness.

There has been a social clash between the races and economic classes of people throughout American history. This clash has wrought injustice since 1789 ratification of the U.S. Constitution. The end result is a system of justice shaped more by privilege and wealth than due process, justice, and equality.

A cursory examination of the first two steps into our criminal justice system highlights racial and economic-based injustices that eventually lead to disparities in outcomes and incarceration rates.

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, Black Americans’ arrest rate 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 prominent role in judicial decisions about who will and who will not be released on bail, that bail judges “are racially biased against black defendants.”

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.”

Blacks and Latinos More Likely to Be Jailed Pending Disposition

Pre-trial detention populations in American jails are disproportionately Black and Latino. Two factors contribute to this reality: race and wealth—two factors that create both the “tragedy and travesty” in the current cash bail system.

Writing in the February 11, 2021 Texas Tribune , Jolie McCullough underscored both the Harris County cash bail system’s tragedy and travesty.

According to arrest records, Alex Guajardo is a violent person. In 2018 he was arrested in Harris County for assaulting his pregnant wife, Caitlynne. According to McCullough, since he was already on bail for “driving while intoxicated,” he was released on a personal bond with conditions that he have “no contact” with his wife. 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 bail reform is the only way to prevent such tragedies and travesties produced by the current system, predominantly dominated by cash bail. Significant reforms can be achieved only by looking through a different lens when deciding whether to detain people following arrest and prior to disposition of their cases.

What is Personal Recognizance Bail?

Referred to generally as “personal recognizance” (PR Bond), this type of pre-trial release is based on a defendant’s promise to attend all future court hearings with conditions that they not engage in any criminal activity, and comply with any conditions set ordered by the court. Release on PR bond is reserved for non-violent, low-risk individuals and allows release after the individual signs a promise to appear in court.

Pre-trial Supervision

Pre-trial supervision usually means the release of an accused with some restrictions, court-imposed conditions, such as electronic monitoring, curfew, drug testing, counseling, etc., monitored by a pre-trial officer. This type of pre-trial release allows a person to go back into the community and maintain employment while keeping some monitoring tools to enable the court to monitor the individual’s behavior.

Cash Bail

Cash bond, the dominant bail system in Texas, allows an individual to secure release by merely posting the full cash amount with the court clerk or by paying a fee to a bondsman, who acts as a surety on the bail amount and guarantees the person’s appearance in court. The cash bail bond system has led to gross disparities where violent, high-risk offenders with financial resources can post a bond in a few hours, while low-risk, first-time offender can languish in jail awaiting trial for inability to pay. This financial discrimination against poor and working-class people has led similar disparities in pre-trial incarceration rates for black and brown people.

Four states have eliminated or rolled back cash bail to certain degrees: California, New Jersey, New York, and Alaska.

New Jersey uses a risk assessment system that determines whether a defendant can be released without bail or whether they should be held in detention with no bail. This risk assessment process permits the courts to evaluate individuals and impose bail conditions determined on a case-by-case basis, including house arrest, electronic monitoring, and posting cash bail in rare cases.

Bail Reform in Texas

Bail reform in Texas should consider three fundamental factors: to endure a person’s appearance at court, maintain public safety, and protect a defendant’s presumption of innocence. The state’s current predominantly cash bail system fails miserably on both fronts, as tragically illustrated in the Guajardo/Chaney cases.

The crucial political argument surrounding bail reform in Texas focuses primarily on two ideological points of view. First, bail system reformists argue that the current system not only fails to protect the constitutional presumption of innocence but vastly contributes to jail over-population that too often induces the innocent to accept guilty plea bargains.

Those who favor the current bail regime or advocate for harsher restrictions argue that protecting public safety is the overriding concern. They argue for an increase in non-bailable offenses and virtually eliminating PR bail for the financially disadvantaged while protecting the wealthy’s ability to purchase bail.

In Texas, a wealthy, high-risk individual charged with a violent offense can almost immediately post a high dollar cash bail, while a poor, low-risk person accused of a non-violent crime can spend years in pre-trial detention waiting for their case to be heard. It is intellectually dishonest to argue that such a system does not violate the accused’s constitutional rights and the equal protection clause of the Fourteenth Amendment.

Definition of Reform

Jolie McCullough’s report in the Texas Tribune rightly observes that meaningful “bail reform” faces an uphill battle before the current legislative session because of one central political issue: Gov. Greg Abbott’s definition of “reform.”

The Governor believes that the state’s bail system is broken because it “recklessly allows dangerous criminals back out onto our streets.” Abbott, and the majority of Republicans in the Legislature, do not believe the issue of “reform” applies to individuals like Preston Chaney. The Governor said he is only “open to considering other bail reform issues so that we don’t basically have a prison for the poor who don’t have the ability to get bailed out for petty crimes where they pose no dangerous to our communities.”

Last April, the Governor used his executive powers to shut down efforts by county judges in Harris, Dallas, and Travis counties to release non-violent offenders on personal recognizance bonds to help curb the spread of COVID in the local jails. In effect, Abbott wanted to contain the virus in the state’s jail and prison systems at the cost of sacrificing the lives of inmates like Preston Chaney.

At the time, more than 5700 inmates in the Harris County Jail could not afford cash bail, the vast majority of whom had been convicted of no crime and were detained awaiting disposition of their cases.

Gov. Abbott has now made changing the state’s “bail practices an emergency item for state lawmakers” currently in session in Austin.

Abbott, however, sees bail reform as a tough-on-crime politician looking for cheap points to curry political favor. McCullough defined the Governor’s bail position this way:

“Abbott has repeatedly affirmed that the emergency legislation would not specifically address what criminal justice experts call bail reform: halting the discriminatory jailing of poor people that repeatedly has landed Texas counties in federal court. He said he will consider such measures in other bills, but those efforts are not deemed a priority.

“‘We’re going to separate the Damon Allen Act and what I’m expecting from bail reform there,” Abbott told The Texas Tribune. ‘”Separate from that, I told [lawmakers] that I am open to considering other bail reform issues so that we don’t basically have a prison for the poor who don’t have the ability to get bailed out for petty crimes where they pose no danger to our communities.’”

Abbott’s demand for increased bail restraints is not only a monumental disaster, but it reflects the systemic racism that politicians like him have used for political gain since the inception of our criminal justice system.

Here’s the reality, most of the people held in the state’s jail systems that cannot post cash bail are non-violent Black and Brown Americans, many of whom were poor, homeless, or suffering from mental health issues at the time of their arrests. On the other end of the spectrum, White financially secured defendants like Attorney General Ken Paxton can quickly and easily post cash bails and go about their business.

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.”

Texas Bond Reform Attempt: How Does HB 2077 Help?

House Bill 2077 introduced by Rep Ron Reynolds, Texas House District 27, is not a perfect bill, but is the best piece of legislation filed this session to begin the process of serious bail reform.

HB 2077 Would:
  • Create right to release on bail for all non-violent, low-risk people charged with criminal offenses,
  • Create a presumption for release on PR bond, along with additional conditions as deemed appropriate by a judge,
  • Would require judges who deny bail to make finds by the standard of clear and convincing evidence,
  • Would require judges to consider the risks that person will appear in court and risk of safety to the community, including the victim of the offense,
  • Would require courts to conduct a pre-trial risk assessment using non-biased risk assessment tools designed to avoid outcomes based on gender, race, and other protected classifications,
  • Would ensure a defendant’s appearance in court and protect the community while allowing low risk, non-violent individuals to be released,
  • Would allow a judge to deny bond for violent offenders,
  • Require bond hearings within 48 hours of a person being detained

Bail reform advocates in Texas have their work cut out for them this legislative session. They must double down on their efforts to change the current unconstitutional cash bail system while blocking the passage of Governor Abbott’s reform package, which does nothing to reform and much to endanger our local communities.

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    Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
  • Avatar S A ★★★★★ 4 years ago
    Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
  • Avatar Gary Watch ★★★★★ 4 years ago
    I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
  • Avatar Saman Daftarian ★★★★★ 4 years ago
    I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
  • Avatar calvin robinson ★★★★★ 4 years ago
    It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
    Responsiveness, Professionalism …More
  • Avatar Alan Howk ★★★★★ 4 years ago
    Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
  • Avatar CMCustom Cycles ★★★★★ 4 years ago
    Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
    Responsiveness, Quality, Professionalism, Value …More
  • Avatar Greg Page ★★★★★ 4 years ago
    I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
    Responsiveness, Professionalism, Value …More
  • Avatar Kristen Rankin ★★★★★ 4 years ago
    Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
  • Avatar Kedar Puranik ★★★★★ 4 years ago
    John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
  • Avatar Joseph Sivadon ★★★★★ 4 years ago
    What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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  • Avatar Lex Strider ★★★★★ 4 years ago
    Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
  • Avatar karim khalifa ★★★★★ 4 years ago
    Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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  • Avatar James Haggard ★★★★★ 4 years ago
    Great service, very knowledgable and happy to help with any questions I had
  • Avatar David Sustaita ★★★★★ 4 years ago
    Quick to action and helpful and knowledgeable with entertainment industry based issues!
  • Avatar Chad Groves ★★★★★ 4 years ago
    Responded on a holiday week. Very knowledgeable and reassuring.
  • Avatar Mark Fein ★★★★★ 4 years ago
    Very professional
  • Avatar Bthomason903 Bthomason903 ★★★★★ 4 years ago
  • Avatar Anton Jasser ★★★★★ 4 years ago
  • Avatar Alma Garza ★★★★★ 4 years ago
  • Avatar Victory 2020 ★★★★★ 6 years ago
    I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
  • Avatar Alma Garcia Cunningham ★★★★★ 6 years ago
    The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
  • Avatar Rajiv Patel ★★★★★ 6 years ago
    From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
  • Avatar Jose Tapia ★★★★★ 6 years ago
    I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
  • Avatar Sagar Patel ★★★★★ 6 years ago
    These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
  • Avatar RAYNINN ★★★★★ 6 years ago
    John and Chris are true professionals! Love those guys like family!
  • Avatar Virginia Martin ★★★★★ 6 years ago
    Mr. Floyd and his team are very knowledgeable, informative, and helpful.
  • Avatar Darla Latham ★★★★★ 6 years ago
    A team you can depend on to stand up and fight for you to prove the truth the whole truth!
  • Avatar Veronica Elorza ★★★★★ 6 years ago
  • Avatar Karetta Lux ★★★★★ 7 years ago
    Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
  • Avatar GM ★★★★★ 8 years ago
    The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
  • Avatar Sandra Bivens ★★★★★ 8 years ago
    I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
  • Avatar Mike Kittelson ★★★★★ 8 years ago
    I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
  • Avatar Robert Hair ★★★★★ 8 years ago
    Extremely helpful!!! Helping me understand the law.

John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization

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