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 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 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.