As Federal Courts Strike Down Bail Practices, Texas Must Reckon with Reform

(Photo: Getty Images)

Nathan Hecht, the chief justice of the state Supreme Court, and Daniel Slayton, the executive director of the Texas Judicial Council, have a vision of what statewide bail reform can look like.

By Matt Keyser

When Texas Gov. Greg Abbott gave statewide remarks to Texans on Feb. 1 during his annual State of the State address, he listed a series of emergency priorities he felt legislators needed to address as they reconvened in Austin for the 87th legislative session.

Notably among those priorities was statewide bail reform due to, as Abbott said, a “broken bail system” that puts public safety at risk by allowing “dangerous criminals back on the streets.”

Missing from the governor’s bail reform remarks, however, were the thousands of Texans stuck in pretrial detention simply because they could not afford cash bail to grant their release. The bail systems in three of the state’s most populated counties—Harris, Dallas, and Galveston— have been ruled unconstitutional for that very practice.

“No system can guarantee that all those accused of misdemeanors who are released on personal bonds—rich or poor—will appear for hearings or trial, or that they will commit no crimes on release,” wrote U.S. District Judge Lee Rosenthal in her 55-page ruling. “No system can guarantee that all those accused of misdemeanors who are detained pending trial—rich or poor—should have been detained. But Harris County … can stop systematically depriving indigent misdemeanor defendants of their constitutionally protected rights by detaining them simply because they cannot afford to post money bail.”

As lawmakers return to Austin for the legislative session, how should they confront the topic of statewide bail reform?

State Sens. John Bettencourt, R-Houston, and Jan Huffman, R-Houston, have filed proposed bills that would further entrench the cash bail system and limit the number of people eligible for personal recognizance bonds, in which money isn’t a factor in release.

Huffman, in a statement given to the Texas Tribune about her bill, said she’s committed to “passing legislation that will create substantial changes to our state’s broken bail system by ceasing the release of dangerous criminals back into our communities.”

Yet advocates against stricter bail laws have spoken out against both proposals, citing research that shows people out on bail largely aren’t committing new crimes or failing to appear in court.

Meanwhile, Nathan Hecht, the chief justice of the Texas Supreme Court, and David Slayton, the executive director of the Texas Judicial Council, have an idea.

In an op-ed written in The Dallas Morning News, the two wrote that “bail should be set based on the risks that a defendant will re-offend or otherwise threaten harm, or will not return to court to face charges.”

In their piece they endorsed four key policies: Judges should use a validated risk assessment tool. Voters should amend the state Constitution to allow for judges to hold the most dangerous and violent people without bail. Supervision should be provided for those who are released pretrial. Data should be collected to ensure the system is working.

“Reform is not a question of whether, but who,” they wrote in the op-ed. “Federal courts have already found bail systems unconstitutional in Houston, Dallas and Galveston, and courts imposed changes. If Texas refuses to reform its bail system to comply with the U.S. Constitution, the federal courts must do it for us.”

Chief Justice Hecht and Slayton spoke with NPPJ about the future of bail reform in Texas. This interview has been edited for length and clarity.

NPPJ: Why is there such a push for bail reform now? 

Texas Supreme Court Justice Nathan Hecht.

Nathan Hecht: It started in Ferguson, Missouri, when the U.S. Department of Justice went in to investigate what happened after the death of Michael Brown. [Brown, an 18-year-old Black man, was shot and killed by Darren Wilson, a white Ferguson police officer that sparked nationwide protests against police brutality.] What they found as part of their investigation is that courts in Missouri were imposing fines and fees on people who couldn’t afford them and then jailing them because they couldn’t pay.

And at the same time, they were looking at pretrial release and the Department of Justice did a big report. They gave it to the National Conference of Chief Justices and we formed a task force to look at it. This was several years ago. The chief justices all saw a need for this, and so it’s been an initiative across the country in different ways: within the legislature in California, the legislature of New Jersey, New York has come at it a different way. It was a court rules project in Arizona.

Texas is looking at it, too, and we have been for several years because several jurisdictions have been sued in federal court—Houston, Dallas, and Galveston. And all of those cases went against the pretrial release system in place in those jurisdictions.

So this—I won’t get too down in the weeds—but this is what the people would refer to as “stage three” of bail reform in the country. Stage two began in 1983 in the federal court system, and then it kind of dropped off for a while, and now it’s rejuvenated in the state system.

David Slayton: And just to add what the chief justice said: After the conference of the chief justices looked at the issue, he asked us to take a look at it from a Texas perspective. That was in 2016—or some time around there. And when we looked at Texas’ jail population, we found that, about 30 years ago, the population of pretrial detainees in Texas was around 33 percent. And it had risen, at that time, to 75 percent. It’s now actually up to 78 percent of people housed in Texas jails.

We then did some work and looked at how judges across the state were setting bail and found that only in six out of 254 counties did any of our judges have access to risk information. According to the judges in a survey, the number one thing they were using to determine bail was their “gut feeling.”

So the chief justice asked the Judicial Council, which he’s the chair of and I serve as the executive director of, to really look at this issue and try to recommend reforms, which in 2017 we began doing. We tried in the 2017 legislative session, the 2019 session, and hopefully the third time is the charm.

NPPJ: What should bail reform look like in Texas? 

NH: We think the centerpiece ought to be risk assessment. We think that you ought to release people who are charged with offenses on their personal recognizance if they’re not a risk of flight or a threat to the victims or recidivism or anything like that. The other big piece is to amend the Constitution, so that the very dangerous individuals can be held without bail. Just because they’re rich enough to come up with a bond doesn’t mean they should be left out. That can happen in the federal system. The Texas Constitution is different.

DS: Texas, like many states, is a right-to-bail state. There are few exceptions in the Constitution to hold someone without bail, but it is extremely rare that Texas judges have the authority to deny bail. As the chief said, if someone has the money they can afford whatever bail the judge sets. If they don’t have money in our system, and money bail is used for people who are low risk then they’re stuck. And many of those people are the ones sitting in our jails today.

NPPJ: So many of the cases in which a person is released pretrial on cash bail and then commit another crime make headlines. But we never hear about the person who is held on a low-level offense but can’t afford bail. I’m thinking in your op-ed, for example, you referenced a grandmother who was charged with shoplifting and had her bail set at $15,000 and she sat in jail because she couldn’t afford to pay it.

NH: Right. And she had done it before, so they set bail at $15,000. And you’ve got to pay 10% to pay a bail bond company, so that’s $1,500. Well, the reason she was shoplifting $105 worth of clothes was because she didn’t have the money to buy clothes for her grandkids, so of course she didn’t have $1,500.

We keep trying to remind everybody that this comes out of the taxpayers’ pockets; she didn’t sit in jail for free. You pay $80 per day, $100 per day, depending on what part of the state you’re in. But the taxpayers are paying for her stay in jail. When people who are poor stay in jail and they lose their jobs, they lose their families, they lose their house, then society pays for all of that when they get out. So there’s a terrific cost to the taxpayers from doing all of this. And that’s why it’s not a conservative or a liberal issue. It’s not political. No matter what your ideas are about policy and politics, there’s an interest in this for everybody.

DS: If my memory serves, there are over 40,000 people sitting in Texas jails today who are awaiting trial—not being held for any reason other than they’re awaiting trial and they haven’t made bail. That’s a cost of almost $1 billion a year spent detaining people pretrial. So to the chief’s point, it’s a very expensive undertaking, even if conservatively we said that 25 percent of those people shouldn’t be there because they’re not a risk. Well at that number, that’s $250 million that taxpayers are spending that can be spent on public schools, roads, or other needs of the system.

NPPJ: How did Texas get to this point where it relies so heavily on cash bail?

NH: It’s the whole country. It’s been a practice across the whole country. Setting pretrial release conditions is hard. And when you don’t have any kind of risk assessment tool, the magistrates are sitting there and all he probably has is the arrest record that the officers turn in. And knowing no information about background, no information about if this is a one-off circumstance if the defendant just made a mistake or is this a pattern—there’s just no way to evaluate it. And so magistrates do not, of course, want to turn somebody loose who’s going to hurt somebody else.

When a decision like that is hard, there is a tendency—and again it’s across the country—to come up with a schedule and it lists the offense and it says “if this is the charge, then bail should be set at this.” It’s just a nice, mechanical, easy way to do it. But the charge that the defendant has been arrested on has very little to do with whether he should be released or not. And the answer is to tear up those schedules and use something that is a better predictor of risk.

NPPJ: When talking about the money involved in jailing people pretrial, it seems that releasing people would free up money for funding diversion programs or community resources that can better help people.

NH: There are some costs involved in pretrial release, because you don’t usually just turn them loose. You report back periodically. They have to come to court. Maybe there are even more conditions, like they have to wear an ankle monitor. There are lots of things that you have to do. And then that has to be monitored. But it’s still a whole lot less expensive to the taxpayer than just putting them in jail. I mean you’ve got 9,000 people in the Harris County Jail.

DS: Texas has proven through other criminal justice reforms the ability to reallocate money that’s being used to house people to better use. Texas has reduced its prison population over the decades and taken that money that they’ve saved from shutting down prisons and put it into probation programs and diversion programs and drug education programs. And it’s worked. If we can see that happening again here, I think we’ll see positive benefits.

NPPJ: With the lawsuits ruling cash bail systems in various counties are unconstitutional, is it more pressing now to reform the system than wait until later?

NH: It’s important. The current system is illegal. It’s against the law. It violates the law. Three federal courts have found it illegal. And a federal appellate court affirmed it. This is not a law that we can say, “Wouldn’t it be good to improve things?” We need to quit breaking the law.

NPPJ: So if lawmakers don’t act, are federal judges going to step in and make the necessary reforms?

NH: Yeah. These organizations are going to keep suing and if there’s any resistance to it, which there has been in all three jurisdictions—Harris County, Dallas County, and Galveston County—then somebody has to pay a lawyer to defend the county in all those cases. So that’s just another cost to taxpayers. And what we ought to be doing instead is improving the system for everybody.

DS: The Fifth Circuit [U.S. Court of Appeals] said in its ODonnell opinion out of Houston that if Texas were to implement the reforms that we’ve been advocating for from the Judicial Council, the federal courts would have to reconsider their involvement in the Texas litigation. I think that they’re painting a really clear picture to us that this appears to be a good road to go. But if you don’t want to do it, then we’ll take care of it for you.

I think Texans, as proud as we are, we’d prefer to take care of the situation ourselves rather than having the federal courts do it for us. So let’s design a system that works and is legal instead of having federal courts do it and maybe not getting it done exactly the way we might like it done.

NPPJ: So it’s the need for there to be a more fair, consistent system statewide?

DS: Right. I think that’s the other issue that gets to state policy perspective. Obviously the ACLU can go county by county and sue their bail systems and see what they can do. Which means Dallas County will have a system, Houston will have a system, Galveston will have a system, and so on. Right now counties can come up with all kinds of ways of doing it. So Houston has a way they’re doing it now. Dallas has a way. Nueces County has a way. Galveston has a way. And there’s no consistency to it, which also causes some questions and concerns.

I think by the state legislature getting involved and coming up with a new bail system in Texas, yes, counties can still have some local discretion about what to do with individuals, but setting out a framework for how this is going to be decided is, I think, the key.