A major effort to overhaul the bail system in Texas was rolled out Thursday, and the reforms have some powerful backers. The target is a system that releases people held in jail before trial based in part on their ability to pay their bail or a fee to bond out. It’s a system that leaves many of the state's poorest residents to wait in jail until their court date arrives, which advocates say wastes taxpayer dollars and unnecessarily upends lives.
According to the Texas Judicial Council, counties spend more than $900 million every year to lock people up before their court date. Three quarters of people in Texas jails are being held pre-trial, which means they haven’t been convicted of a crime. That’s way up from 25 years ago, when jails were filled mostly with people who’d already been convicted of a crime and sentenced to be there.
Houston Sen. John Whitmire said many of those awaiting trial in jail could be safely released but are stuck behind bars because they can’t cobble together enough money to bond out. It’s a broken system, he said, that also lets potentially dangerous people go because they have the cash.
“Today, if you’re a violent offender and you can afford a very expensive bond, you pay it and you go back to your, in my judgment, oftentimes criminal practice,” Whitmire said.
Whitmire, a Democrat who chairs the Senate’s criminal justice committee, joined up with Rep. Andy Murr, a Republican from Kerrville, to introduce the sweeping bail reform package. The legislation is based on recommendations proposed by the Texas Judicial Council.
It would require judges to use data to better assess the risk of a defendant not showing up for trial or committing a crime in the meantime. It would also make judges consider releasing low-risk, non-violent defendants without an upfront fee.
Murr, a former judge who sits on the state’s judicial council, said that the reforms will give judges more tools without tying their hands.
Powerful Allies
Top Texas judges have thrown their weight behind the effort.
Judge Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, and Supreme Court Chief Justice Nathan Hecht both spoke at the announcement.
“Recent research has found a correlation between lengthy pre-trial detention, and an increased likelihood of recidivism,” Keller said, adding that people of color are more likely to detained pretrial than white defendants.
Hecht said the courts shouldn’t punish people who before they’ve been convicted and aren’t likely to cause trouble, just because they’re poor.
“These are people who would go back home, try to hold onto their jobs, try to hold onto their families, come back for their court appearance, try to hopefully get their lives straightened out,” Hecht said. “But they wouldn’t be a burden on society and on the taxpayers.”
Hecht said that states across the country are enacting bail reforms, ending decades of what describes as a system operating largely due to inertia.
“You get into a pattern, it’s pretty much working, and you don’t go back and see if it could be done better, and lo and behold, one day you wake someday and you think 'why are we doing it this way?” Hecht said.
The proposal has been lauded by reform advocates. In an email newsletter, University of Houston law professor Sandra Guerra Thompson said the current system likely played a role in the deaths of some of the 1,111 people who died in county jails between 2005 and 2015.
The reforms, had they been enacted, “would surely have saved Sandra Bland’s life and might also have saved the life of Vincent Dewayne Young, who committed suicide in the Harris County jail the day before Valentine’s day last month.” Guerr Thompson wrote. Bland hanged herself in jail after she was unable to raise $515 to bond out of jail when she was arrested in 2015.
Crunching The Numbers
The chief justice also pointed to a new study commissioned by the Texas Judicial Council that compared data from Tarrant and Travis counties, released Thursday.
Tarrant County primarily uses a traditional cash bail system: a judge said a defendant has to pay a set amount of money to get out, based on how severe their crime was, and if they seem like a flight or public safety risk. Travis County requires the use of a data-based questionnaire to assess risk. Travis lets many low-risk defendants out on a personal bond, which has no upfront fee but carries a financial penalty if the defendant doesn’t show up for court.
Dottie Carmichael from Texas A&M led the study, and said Tarrant’s system, requiring bail money, underperforms.
“In the financial-based release system, 12 percent more potentially dangerous people were being let out of detention. These are not just average offenders. These are disproportionately violent,” Carmichael said.
Carmichael also finds a money-bail system holds low-risk defendants in jail more often, and for longer periods of time. All of that costs taxpayers more.
An Industry Under Threat
The reform package won’t do away with cash bail entirely, but the bail bond industry in Texas worries it’ll put them out of business, and is gearing up for a major fight. In a fundraising letter sent to bond brokers, the trade association Professional Bondsmen of Texas presented the legislation as an existential threat.
“Everyone will be negatively affected or put out of business this session,” without the ability to mount an effective lobbying effort in Austin, the letter said, asking for everyone to donate to the cause. It was written in bright red, underlined, all capital letters.
Industry officials often argue that bail agents help ensure defendants make it to their court date, and that the financial stake is a necessary spur to keep some defendants in line.
Critics say the industry profits off of people too poor to pay their own bail, who must sacrifice a fee to a bond broker even if they are found not-guilty. For-profit bail bond companies are banned in most of the world.
A request for comment from the Professional Bondsmen of Texas was not returned.
The letter also points to the threat to the industry imposed by a class action lawsuit in Houston arguing that the use of money bail for petty crimes unconstitutionally keeps people incarcerated because they can’t make bail. Harris County’s sheriff, county executive and district attorney have all come out in favor of the litigants suing the county.
