As lawmakers reconvene at the state Capitol for a special session, we speak with the Vera Institute of Justice about how they will—and should—address the bail system.
By Matt Keyser
National Partnership for Pretrial Justice
When Texas lawmakers embark back to the state Capitol in July for a special session, they’ll be tasked by Gov. Greg Abbott to address the state’s bail system.
Bail reform has become a hot-button issue in Texas, with a few high-profile cases fueling the cry to make it harder to release people pretrial. The state’s regular biannual legislative session ended with Democratic lawmakers walking out of the Capitol, breaking quorum and halting a vote on another proposed bill that critics said would suppress voting during elections. It also stalled a vote on a bail bill that would have further entrenched problems within Texas’ broken and unjust wealth-based bail system.
Texas is in dire need of pretrial reform. On any given day, two-thirds of the 65,000 people in jail across the state are there on bail they cannot afford. Federal courts have ruled bail practices in the three of the state’s largest counties—Harris, Dallas, and Galveston—to be unconstitutional. Those counties, especially Harris, have taken critical steps to move away from using money bail with considerable success. Since bail reform, Harris County has seen rates of bail setting in misdemeanor cases decline from 92% to just 14%, without causing an uptick in crime or compromising public safety.
Rather than focusing on reforms backed by data and evidence, Insha Rahman with the Vera Institute of Justice said lawmakers are letting politics drive the efforts to change Texas’s bail system. The final bail bill that was killed by the quorum break – House Bill 20, authored by Reps. Andrew Murr (R-Junction) and Kyle Kacal (R-College Station)—ended up being more punitive and regressive than original drafts. The bill eliminated discretion for judges to release people without bail for many low-level, nonviolent offenses—a provision that would expand the profits of the state’s influential bail bond lobby. It imposed onerous requirements on charitable bail funds to deter them from operating in the state. Risk assessments, which were touted by some lawmakers as the key to a fairer pretrial system, were dropped entirely. This final language will likely be the starting point for some lawmakers as they attempt to pass a bill to send to Abbott to sign into law.
“What we’re seeing in Texas is not bail reform, it’s bail rollbacks,” said Insha Rahman, vice president of advocacy and partnerships with the Vera Institute of Justice. [Vera is an NPPJ partner.]
NPPJ spoke with Rahman about the state’s proposed reforms, the consequences if House Bill 20 is passed as written, and what changes are needed to properly reform Texas’ bail system.
This interview has been edited for length and clarity.
NPPJ: Why is bail reform such a pressing issue for Texas right now, and why is it needed?
Insha Rahman: There are more than 65,000 people in Texas jails right now—and the majority are there pretrial. This crisis is driven by many factors, including the use of bail schedules that tip the scales towards setting bail, perfunctory bail hearings that last seconds before a decision is made, and very few due process safeguards to protect people’s constitutional rights.
The bail system in Texas is a relic propped up by the influential for-profit bail bond industry that holds sway in the state legislature, as well as in local county elections. Clearly, bail reform is long overdue. But when I say bail reform, I want to be precise in what I mean. I mean changes to Texas’ pretrial laws that result in less use of money, end the for-profit bail bond industry, result in fewer people detained behind bars, and address the gross racial disparities we see in who remains incarcerated pretrial. That’s what I mean when I say bail reform, and Texas is desperately in need of it.
We were hoping that we would see real bail reform happen this session. But the bail bills considered and passed during the session by at least one of the two legislative houses—from Senate Bill 21 to House Bill 20—were not real reform. And the bill that died at the end of last session and will come back into play during the special session that starts on July 8 is most certainly not bail reform. These measures are actually bail rollbacks—to make the system even more onerous and punishing for people accused of a crime who don’t have money to buy their freedom.
NPPJ: So instead of Texas looking to reform the bail system, this bill that will be proposed during the special session would make the current system worse?
IR: Yes. There are several problematic measures in HB 20 as drafted, including an unfunded mandate to counties to add several new steps to the arrest-to-magistration process, and provisions that threaten the operation of community bail funds. The biggest problem with HB 20, if it passes in its current form, is that magistrates will no longer retain discretion to release people after an arrest on many cases, including low-level, nonviolent charges. Undoubtedly this will lead to more overcrowding in Texas jails, especially in rural counties with already overburdened court systems that meet infrequently.
You could presumably justify these burdens in the name of public safety, but that’s not behind the push for these rollbacks. These bail measures are driven by backlash to Harris County and what the Governor and some members of the Legislature see as the excesses of misdemeanor bail reform there. A few high-profile, outlier cases where people released pretrial were rearrested are being used to fearmonger that bail reform is making us less safe. That’s perception, not facts or data. But fearmongering is effective and it is why the Governor has made HB 20 a priority for the special session.
We know from the facts that bail reform in Harris County has been hugely successful. As a result, thousands of fewer people charged with misdemeanor offenses are booked into the Harris County Jail, who prior to bail reform spent at least one or two days in custody before being released. We are avoiding the human toll of unnecessary pretrial incarceration, as well as the financial toll on the county. And we are doing so without compromising public safety.
The monitors for the ODonnell settlement released two reports documenting the impact of Rule 9, which is essentially the misdemeanor bail reform provision that requires the county to release most people facing misdemeanor charges without bail. [In ODonnell, a federal judge ruled that Harris County was unconstitutionally using money bail to jail people charged with misdemeanors before trial.] The monitors studied the impact of the rule and found that since bail reform, the use of money bail declined with no negative impact on public safety. Did those reports make the nighttime news the way the outlier terrible cases do? No, even though tens of thousands of Houstonians have benefited from misdemeanor bail reform, it has saved the county significant sums of money, and comports with public safety.
NPPJ: Although that report doesn’t make the news, why is it not addressed more by lawmakers who are in charge of making changes to the law in the name of reform?
IR: Because the status quo is incredibly powerful. We’ve all heard of Willie Horton [Horton was serving a life sentence in prison for murder in Massachusetts when he was released on a weekend furlough program and went on to escape and rape a woman. George H.W. Bush prominently featured Horton’s case in campaign ads during the 1988 presidential election.] Willie Horton was the most effective messaging campaign I have ever seen in the criminal justice field. The specter of crime and the fear it generates touches upon a basic reptilian instinct we all have about public safety. In this country, legislators and much of the public has associated public safety with more police, prosecution, and incarceration. Anything that bucks the status quo, like bail reform in Houston has done, is vulnerable to fearmongering that reinforces the status quo.
We are pushing a boulder uphill when we say that bail reform and having fewer people behind bars delivers more, not less, public safety. But we can get there. Across the country, there are places that have done bail reform and done it right and succeeded. But it takes political will and commitment to do so. The political headwinds in Texas are blowing the opposite way.
Even on the eve of this special session, all hope is not lost. We’ve already seen many of the House and Senate Democrats say no to bail rollbacks. Several members of the House took a stand and walked out at the end of last session. We have to hope that in the special session, those same principled legislators who follow the facts and data and see that public safety can be delivered with bail reform hold firm and continue to go against the tide.
MORE ON TEXAS BAIL REFORM FROM NPPJ
- Will Texas Finally Tackle Bail Reform?
- As Federal Courts Strike Down Bail Practices, Texas Must Reckon with Reform
NPPJ: If you could sit down with lawmakers and make them see what good bail reform looks like—with the politics removed, based on hard data and evidence—what would you tell them?
IR: We have homegrown examples in Texas, supported by data and evidence, of good bail reform. For one, replicate the misdemeanor settlement under ODonnell statewide. It will promote public safety and lessen the human and financial toll of bail. Second, extend the standing order policy for automatic release, as codified in Rule 9 for misdemeanors, to at least nonviolent felonies, which is something other jurisdictions have done to much success. Third, encourage prosecutors to pass local policies that decline to prosecute some charges entirely so that Texas no longer processes almost 1 million arrests each year—primarily for minor conduct that criminalizes poverty and illness. Fourth, put in place safeguards that protect people’s constitutional rights, like appointed counsel and bail review hearings. Fifth, impose a meaningful threshold for detention so that only people facing serious charges are detained, and require the courts to put on the record the reasons for setting bail or imposing pretrial detention.
That might sound like a lot, but many other places have effectively implemented bail reform. Kentucky has had a robust pretrial administrative release policy—their version of Rule 9—since 2017. Even though thousands of people have been released pretrial as a result, a recent report found that rearrest rates remained constant pre- and post-reform. Likewise, almost two-thirds of all arrests in New Jersey are subject to release on a citation or a summons. In the five years since their reforms went into effect, crime overall—especially violent crime—has dropped statewide. These are just two examples that demonstrate if you take the politics out of it and follow the data and evidence, Texas can also pass good bail policy.
NPPJ: What happens if the special session passes and nothing changes in the state’s bail law?
IR: Texas’ current bail system is unconscionable and needs change. While it will be a win if we avoid bail rollbacks during this upcoming special session, it is not a win if two years from now the status quo remains.
One overlooked potential force for bail reform in Texas is the statewide Office of Court Administration. OCA has the power of the pen and the bully pulpit to issue court rules and directives. They can encourage local judges to promulgate standing release orders and other bail reform measures. They can issue guidance to limit the use of bail schedules, which virtually every county in Texas has right now, so that the courts stop defaulting to setting money bail. And, given OCA’s statewide reach, they can proactively identify jurisdictions where bail practices are most egregious and rein them in. There is more that can be done, but I name a few just to give you a sense of how to fix Texas’ broken bail system even without the legislature weighing in.