In the wake of several federal court decisions ruling money bail systems unconstitutional — and facing the exorbitant cost of detaining tens of thousands of unconvicted people —advocates on the left and right are calling on the Texas Legislature to finally pass bail reform.
By Pretrial Justice Team
National Partnership for Pretrial Justice
Laquita Garcia had just finished checking out at a Dallas Walmart in 2009 when she suddenly found herself surrounded by security guards. The guards took Garcia, her 15-year-old son, and her son’s girlfriend into a back room for a search, during which they found a pair of unpurchased baby shoes in the girlfriend’s handbag. Garcia had no idea the shoes were in the bag, but because she had a prior shoplifting conviction she was booked into jail on a $30,000 bail bond.
Unable to pay the bond, Garcia spent the next year behind bars awaiting trial. In the meantime, her three children — 17, 15, and 12 at the time of her arrest — had to fend for themselves in Section 8 housing. A court-appointed attorney advised Garcia to accept a plea deal, which would get her out of jail faster, but she steadfastly maintained her innocence. Eventually, at an open plea hearing, a judge found Garcia not guilty and released her. She had spent a year in jail awaiting trial for stealing about $20 worth of merchandise.
Garcia’s case isn’t unusual. On any given night in America, around half a million people — 40,000 in Texas alone — are in jail awaiting trial, the majority because they can’t afford bail. Pretrial detainees account for two-thirds of America’s total jail population, and cost the country $14 billion a year. Many plead guilty in exchange for early release; others, like Garcia, remain locked up for weeks or months. Research shows that spending even a short time in jail can have a devastating effect on a person’s life, often leading to job loss, eviction, and long-term psychological damage.
“It was a really traumatic time,” Garcia recalled. “My daughter had to run the house by herself while I was away.”
In March, Garcia, who now works as a statewide policy coordinator for the Texas Organizing Project, testified at a Texas legislative committee hearing on bail practices. Two bail laws are currently under consideration in the Legislature. House Bill 20, introduced by Republican representative Andy Murr, would require judges to make a release decision within 48 hours of arrest, and to impose the minimum amount of bail and least restrictive conditions of release necessary to ensure public safety. Unfortunately, the bill’s counterpart in the Senate, SB 21, would actually roll back progress on bail reform by reducing the number of defendants eligible for personal recognizance bonds. Last month, the Harris County Commissioners Court passed a resolution condemning SB 21 as unconstitutional and arguing it would severely burden the county jail.
At the hearing, Garcia urged lawmakers to consider the human cost of jailing people before trial. “No one deserves to languish behind bars simply because they cannot afford to buy their freedom,” Garcia told the committee. “A growing chorus of people on the left and right side of the political spectrum know full well how the money bail system feeds off the suffering of our low-income Black and Latino communities.”
As with many other aspects of criminal justice reform, efforts to improve Texas’s bail system have found bipartisan support. Last year, 95 percent of Republican primary voters in Texas said that bail should be based on a person’s danger to society and risk of flight, not their ability to pay, a position that was later enshrined in the 2020 Texas GOP platform.
“The justice system needs to prioritize safety, but it also needs to strongly factor in equality and justice,” said Timothy Head, the executive director of the conservative Faith and Freedom Coalition. “Right now, the scales of justice are tipped against people with modest financial means, perpetuating systemic inequality.”
Kate Trammell, director of policy and research for the Prison Fellowship, a Christian nonprofit, said it’s crucial to “dignify people who have been charged with crimes, and give them their presumption of innocence. There’s no denying that public safety is a pressing concern, but that has to be balanced and constrained by the need to ensure the presumption of pretrial liberty.”
‘I Wish There Was More Balance’
Over the past several years, Texas cities including Houston, San Antonio, and Dallas have been at the forefront of national bail reform efforts. These reforms have resulted in more people being released before trial without bail, allowing them to keep their jobs and stay in their communities. Contrary to the predictions of reform opponents, releasing more people has not significantly impacted public safety, recidivism, or court appearance rates.
Although there’s little evidence that releasing more people before trial hurts public safety, cases in which people free on bond have committed new crimes tend to generate intense publicity. Some have seized upon these statistically rare incidents to argue for rolling back bail reform.
In his February State of the State Address, Governor Greg Abbott slammed a “broken system that recklessly allows dangerous criminals back onto the streets.” He called for passage of the Damon Allen Act, named after a state trooper killed in 2017 by a man who was currently free on bond. Several other bills that would overhaul the state’s bail practices are currently under debate in the Texas Legislature.
But as much as criminal justice advocates want to see the Texas legislature pass bail reform, they warn of a rush to pass new legislation in response to high-profile incidents. “There have been a few people released who have gone on to commit deadly violence,” Head said, “but those are a handful of cases out of tens and tens of thousands of people released from jail.” Because the media tends to focus on violent crime, it’s easy to forget about the vast majority of pretrial defendants who stay out of trouble. The media also gives relatively little attention to the harm suffered by people unjustly detained before trial.
“I wish there was more balance,” Trammell said. “What you see in the media are these egregious acts that aren’t very common, but you aren’t seeing the countless stories about people being kept in jail.” She worries about “creating policy from a place of fear and reaction” — just as lawmakers overreacted to the crack cocaine epidemic of the 1980s by passing punitive and discriminatory mandatory minimum sentences.
Two bail laws are currently under consideration in the Texas Legislature:
House Bill 20: Would require judges to make a release decision within 48 hours of arrest and impose the minimum amount of bail and least restrictive conditions of release necessary to ensure public safety.
Senate Bill 21: HB 20’s counterpart in the Senate would roll back progress on bail reform by reducing the number of defendants eligible for personal recognizance bonds.
A Uniquely American System
The United States is one of only a few countries that rely primarily on money bail to determine pretrial release, and the only country other than the Philippines with a for-profit bail bond industry. (In America, bail bonds are a $14 billion industry, which is why such businesses are among the staunchest opponents of bail reform that abolishes or restricts the use of money bail.) In practice, our reliance on money bail means that wealthy defendants like Harvey Weinstein or Robert Durst can buy their freedom, while poor defendants like Laquita Garcia remain locked up. And the ability to afford bail is no indication of whether a person will commit another offense while out before trial — the man accused of killing Trooper Damon Allen was free because he had posted bonds totaling $15,500.
Traditionally, when a judge believes that a suspect poses a flight risk or risk to community safety, they deliberately set bail at an amount the defendant can’t afford. In a number of recent cases across the country, however, judges have ruled that this practice violates the 14th Amendment’s equal protection clause by discriminating against poor people. Just this month, the California Supreme Court ruled that judges must consider an arrestee’s ability to pay before setting bail.
In 2017, a federal judge ruled Harris County’s bail system unconstitutional after finding that local judges routinely set bail without consideration for whether a defendant could pay. The decision came after a group of defendants sued the county for keeping them in jail simply because they were poor. Following two years of intensive negotiations, the plaintiffs’ attorneys reached a settlement with the county that mostly eliminated the use of cash bail for low-level offenses, with an exception for cases of domestic violence. To ensure that the released defendants made their court dates, the county set up a text message reminder service.
Some local officials criticized the settlement, warning it would let violent criminals out of jail, but research suggests the impact on public safety has been negligible. In September, an independent monitor’s report showed that defendants released from prison without bail under Harris County’s new system were extremely unlikely to commit new offenses, and had excellent court appearance rates. Moreover, the new system significantly reduced racial disparities in pretrial detention.
The American Right to Freedom
As the Texas legislature considers what shape statewide bail reform should take, some legislators and judges have expressed interest in replacing or supplementing money bail with a risk assessment based on factors like prior arrests and convictions. But advocates caution that risk assessments must be carefully chosen or developed, properly implemented, and validated using local data.
“Implementing a risk assessment is not equivalent to bail reform,” said Virginia Bersch, director of criminal justice at Arnold Ventures. “Pretrial assessments can be helpful tools to support new release and due process policies, but the actual reform lies in the policies themselves — and those should advance a jurisdiction’s economic and racial justice goals.”
Ultimately, Bersch said, bail reform is about the American right to freedom. “People accused of crimes should have the opportunity of release, and all that liberty affords — keeping jobs, housing, and families — when they pose no specific threat of violence in their communities.”
In a landmark 1987 Supreme Court decision on bail practices, Chief Justice William Rehnquist famously wrote that “in our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”
Bail reform advocates generally agree on a set of core principles. Pretrial release should be the norm, with detention used in only the most serious cases. Defendants should have due process protections during pretrial release hearings, including right to counsel. Judges should make individualized decisions on pretrial release, taking into consideration a defendant’s ability to pay bail and their community ties; whenever possible, defendants should be released on personal recognizance bonds. And defendants released before trial should be given the least restrictive conditions necessary to ensure public safety and appearance in court.
In her testimony to the Texas Legislature, Laquita Garcia urged lawmakers to preserve the state’s hard-won bail reforms. “We cannot return to the dark days of ‘lock them up and throw away the key,’” she said. “We know that does not work, and it ruins lives, particularly the lives of Black and Latino Texans living on the margins and struggling to survive.” It’s a lesson Garcia knows all too well, having spent a year of her life behind bars for a crime she didn’t commit.
Also testifying at the hearing were family members of crime victims. As a survivor of domestic violence who was nearly stabbed to death by a former partner, Garcia said she understands their pain. “I sympathize with the families that were there to tell their story. But I’m adamant about the fact that you cannot have a one-size-fits-all bill. We need to focus on the root causes of crime, not locking everybody up. No one should have to experience what I went through.”
Read more: As Federal Courts Strike Down Bail Practices, Texas Chief Justice Proposes Reforms