Texas Riding Growing Wave Of Bail Reform Rollbacks

By Marco Poggio | May 19, 2023, 9:58 PM EDT ·

White man in a blue suit and red tie stands behind a lectern that says

Gov. Greg Abbott, pictured during his annual State of the State address in February, is pushing an aggressive agenda to tighten bail laws in Texas. He and his allies in the state Legislature are at the forefront of a movement to counteract bail reform measures that have been enacted around the country over the last several years. (Office of Gov. Greg Abbott)

As he addressed the crowd during his State of the State speech in February, Gov. Greg Abbott of Texas didn't mince words when talking about progressive bail policies in Harris County, home to Houston: they were killing people, he said.

He reminded the audience that a man accused of killing a Houston sheriff's deputy in September had been released on bail on a previous murder charge.

"You know, one of the most dangerous places is one you would least expect," the Republican governor said. "It's a courtroom with an activist judge using low bail to let dangerous criminals back out onto the streets."

Abbott's words encapsulate the vitriol surrounding the debate over bail policy, where perceptions of public safety — or lack thereof — override data analysis on the effect of bail reform on crime.

In the past decade, numerous states and localities have curbed or eliminated the use of cash bail in favor of release — with the most comprehensive reforms taking place in New York, New Jersey and Illinois. Now, some jurisdictions are enacting or considering rollbacks that give back power to judges to incarcerate people who are awaiting trial on certain charges.

Earlier this month, after protracted negotiations with state lawmakers, New York Gov. Kathy Hochul, a Democrat, finalized a budget that eliminated a provision requiring judges to set bail only when they deemed it the "least restrictive" measure to ensure that a defendant comes back to court. Instead, judges will be able to set bail when "necessary to reasonably ensure" court attendance.

The change means judges will have more latitude to impose stricter release conditions for offenses where they can set bail, namely violent felonies, but also for bail-ineligible offenses, where they can impose measures such as supervision, substance abuse treatment and mental health treatment. Judges are also able to consider a repeat offender's history of non-compliance with prior court orders.

The District Attorneys Association of the State of New York welcomed the rollback, saying judges should be given more discretion when setting bail for serious crimes.

"Addressing repeat offenders who fail to show up to court ultimately benefits public safety," a spokesperson for the group told Law360 in an email.

Last month, meanwhile, lawmakers in Indiana approved a constitutional amendment that would give judges the power to deny bail to people charged with crimes that are currently bail-ineligible — anything except murder or treason — if there is "substantial risk to any other person or the community." The amendment will have to pass both state chambers again next year before it can be placed on the ballot for final approval by voters.

Supporters of alternatives to incarceration said that without making changes to state law to ensure due process, the amendment will put people in jail unnecessarily.

In early April, voters in Wisconsin approved two constitutional amendments giving judges the ability to consider past convictions for violent crimes when setting bail for defendants who are charged again for similar crimes. The Bail Project, a nationwide nonprofit that advocates for the elimination of cash bail, decried the changes as a "step in the wrong direction," and said voters had been misled to think that holding defendants in jail before trial would enhance public safety.

"Cash bail offers no public safety protections," the organization says on its website.

Ohioans changed their constitution in November by approving an amendment putting the authority to determine bail amounts and conditions into the hands of individual judges, rather than being subjected to state Supreme Court directives.

But riding the wave of bail-tightening laws across the country, Texas is pushing an even bolder agenda that further expands pre-trial detention. State lawmakers are working on a constitutional amendment that would make it impossible for judges to release defendants charged with certain crimes, even on bail.

Under the proposal, called Senate Joint Resolution 44, judges would be able to deny bail to defendants they believe would miss even one court date, or who they think are a threat to others. It would also widen the category of offenses that are potentially subject to bail denial. The Vera Institute, a nonprofit focused on ending mass incarceration, estimated that the number of defendants who could be denied bail every year could be over 100,000 — one of every seven people who are arrested in Texas annually.

Nicholas Hudson of the American Civil Liberties Union of Texas told Law360 that the proposed amendment, which requires two-thirds of the votes in each state legislative chamber and then final approval by voters, has too little due process and would allow too many people to be sent to jail for vague and subjective reasons.

"We're talking about a huge expansion of the cases which may be eligible for bail denial," Hudson said. "As currently written, it does not ensure that people have access to an attorney when their bail may be denied. And we're talking about a decision that can land them in jail for years."

A separate bill making its way through the Texas Legislature, Senate Bill 1318, would expand the categories of offenses for which personal bonds — cashless bonds that allow defendants to be released on a promise that they will show up at their next court date — are banned. If passed, the legislation would give prosecutors unsatisfied with bond amounts set by judges the power to appeal them. Throughout the time those appeals are pending, defendants remain in jail.

"Not only is that unconstitutional. It's also just a really bad policy that gives prosecutors just way too much power," Hudson said.

In recent weeks, members of the Texas House of Representatives proposed watered-down versions of the bill that includes a presumption of release on personal bonds for defendants accused of nonviolent offenses. That presumption could be overcome, however, if a judge determines that the risks, both to public safety and of a defendant not returning to court, are too geat.

The House also made tweaks to S.B.1318 by removing the provision giving prosecutors the authority to appeal bail decisions.

Hudson said it's still unclear which version of the bills lawmakers will ultimately approve, if either, given that the legislative session wraps up at the end of May. Even then, Abbott could still convene a special session to try to get the bills passed.

The nationwide trend of increasingly tougher bail policies is alarming decarceration advocates, who see them as chipping away at substantial and even radical reforms that took years, if not decades, to come to fruition.

"What we're seeing in Texas, in Indiana and elsewhere are constitutional amendments that will expand preventative detention as a result of reducing money bail, but they do that without providing sufficient guardrails to ensure due process," Erin George, the national director of policy at the Bail Project, told Law360.

That trajectory is visible in states where Republicans hold much of the political power, as well as in those controlled by Democratic majorities — with New York serving as the most visible example. What these states have in common is lawmakers seizing on the perception that their communities, in particular cities, are becoming more violent and that tougher laws are necessary to keep people safe.

Michael Rempel, the director of the John Jay College of Criminal Justice's Data Collaborative for Justice, which studies criminal justice policy, said states that have expanded pretrial detention have done so by casting recent reforms limiting bail as conducive to crime.

But the evidence gathered by criminal justice experts points to a different outcome. Studies focusing on the impact of state-level and local bail reforms on recidivism have largely shown that curbing bail in misdemeanors and less serious offenses did not result in more people committing crimes again once released.

"People are extremely concerned about public safety. The most important lesson from research that has been conducted is that the results are not what most people think," Rempel said. "Actually, pretrial release tends to either have no effect on recidivism or to lower recidivism, and that is because the people who are detained often for short periods of time become more likely to reoffend after they're released as a result of the harms they experienced while they're incarcerated."

Bail Reform: A Story of Success and Backlash

Over the last decade, a national movement to lower the number of people incarcerated in the U.S., which has the largest prison population and the sixth-highest incarceration rate in the world, has fueled state and local campaigns to overhaul pretrial policies including discovery, speedy-trial laws and bail.

"Back in 2016 and 2017, bail was not like the dirty word that it is now. People were excited, legislators were excited. People wanted to reform the bail system," said George, of the Bail Project.

A 2016 class action challenged the constitutionality of Harris County's bail policy for misdemeanor offenses. At the time the suit was filed, an overwhelming number of defendants were detained for days or weeks before trial because they were unable to post bail.

The case ended with a settlement and a consent decree in 2019 ordering that all misdemeanor arrestees — except those charged with assault, driving while intoxicated, or for violating bond conditions in domestic violence and sexual assault cases — be released as soon as feasible after arrest.

A report by the University of Pennsylvania's Quattrone Center for the Fair Administration of Justice found that the injunction resulted in a 3% drop in the number of people charged with new crimes after one year, and a 6% drop after three years.

Changes to statewide policies affected an even greater number of people.

In New York, laws that went into effect at the beginning of 2020 eliminated bail for most misdemeanors and nonviolent felonies, limited the setting of pretrial conditions only to defendants who pose an evident flight risk, and mandated that supervised release be made available to everyone regardless of their charges. That means that, even in bail-eligible cases, which are mainly violent felonies, judges have an option to order supervised release as an alternative to incarceration. The law also requires that courts consider people's financial circumstances when setting bail amounts.

The changes, however, were short-lived. By that July, following a flurry of high-profile crimes in New York City and subsequent pressure from police and prosecutors, the state Legislature rolled back statutory language that had made some offenses ineligible for bail.

The Data Collaborative for Justice estimated that the rollback increased pretrial detention by 8% to 12%. It also found that it "enhanced public safety" because it resulted in more members of a subgroup of defendants, among whom the recidivism rate had soared after the original reforms went into effect, were again being sent to pretrial detention. The group represented about 6% of cases for which bail had been eliminated under the reforms.

A second rollback last year gave judges the power to set bail for otherwise ineligible offenses if a defendant is charged with a crime that involves harm to a person or property — petty larceny or shoplifting included — and has another pending case with the same type of charges.

The third and latest rollback materialized earlier this month, as Hochul, who has been vocal about her intention to tighten bail laws, struck a deal with state lawmakers to embed bail policy tweaks into the executive budget.

Supporters of Hochul's proposal like the idea of giving judges unconstrained discretion to set bail in cases that are fully eligible for it, namely violent felonies.

John J. Flynn, the district attorney of Erie County, home to Buffalo, New York, and president of the National District Attorneys Association, said the latest rollback was necessary to rein in bail reform that he said "went too far." Flynn said he still supported curbing bail for misdemeanors.

"I applaud the governor for her leadership in this regard," he told Law360. "I believe that it's going to protect public safety."

Anthony Palumbo, a Republican state senator representing Suffolk County and the ranking member of the Senate Judiciary Committee, told Law360 in an email that he thought further tightening of New York's bail laws was "an absolute necessity."

"Despite the fact that an overwhelming majority of New Yorkers have demanded action to address the state's disastrous bail reform law, no substantive changes were made to the law in either this or last year's state budget," Palumbo said.

On the other hand, advocates for progressive bail policies, including the ACLU, called the rollback a "backslide on justice" that will result in more people being incarcerated pretrial when they are still considered legally innocent.

Anna G. Cominsky, the supervising attorney for New York Law School's criminal defense clinic, said the changes would affect all defendants regardless of whether they are charged with a bail-eligible crime because the "least restrictive means" language applies to all offenses.

"It will impact every single person that comes into court," she said.

A study conducted by the Data Collaborative for Justice on bail reform's effects on crime, analyzing data collected by the New York State Office of Court Administration, puts two conflicting theories to the test. The first is that detaining criminal defendants prevents them from offending again. The second is that the lingering effects of being incarcerated, even for short periods, makes defendants more likely to reoffend when released.

"We confirmed both theories," Rempel said, "But it was largely theory No. 2 that explains why, in the end, releasing people on misdemeanors and nonviolent felonies actually got to lower recidivism."

New York's bail reform led to a reduction in pretrial detention and a modest decline in the number of people rearrested after being released on misdemeanor or non-violent felony charges. Across all cases where bail was eliminated, the rearrest rate fell from 50% to 44% over the two years after the reform went into effect. In felony cases, the rearrest rate dipped from 27% to 24%, the study showed.

Judges were already less inclined to set bail for misdemeanors even before New York's reforms went into effect, so the largest effect of bail reform on incarceration has been in connection with nonviolent felonies. In 2019, the year before New York's reform went into effect, 53% of people charged with nonviolent felonies faced bail or remand. In 2021, the number fell to 33%. The largest reductions came in rural areas of the state, as judges in New York City were already less likely to set bail.

But the takeaway with the most political baggage is that bail reform has not jeopardized public safety overall, the Data Collaborative for Justice study found. Instead, the data showed fewer defendants in misdemeanor and non-violent felony cases being rearrested than before the 2019 law kicked in.

"The way to understand that finding is that it points to the criminogenic effects of pretrial detention," Rempel said.

Meanwhile, New Jersey nearly eliminated bail starting in 2017 as it shifted to a system giving judges a new tool to help them make pretrial detention decisions based on flight risk and danger to public safety. The new law also limited incarceration only to serious charges. As a practical matter, the standard for setting bail became so high that even people charged with felonies often do not meet it.

When a judge wants to jail a defendant pending trial in New Jersey, both prosecutors and defense counsel can present arguments at a special hearing to determine whether detention is justified. Like New York, New Jersey also made supervised release universally available to defendants.

A law eliminating bail in Illinois — dubbed the Pretrial Fairness Act — was supposed to go into effect at the beginning of January, but was blocked by a judge as part of a lawsuit filed by a group of prosecutors arguing that it violated the state constitution. The law also allows for pretrial hearings where prosecutors in certain serious types of cases can ask for a defendant to be detained.

The case was heard by the Illinois Supreme Court in March and a decision is expected any day.

"Illinois is the only state that fully eliminates monetary bail and therefore fully assures that pretrial detention will not be based on an individual's access to money," Rempel said. "So Illinois goes farthest in that respect."

Punishing Prosecutors and Judges for Being Soft on Crime

In addition to Abbott declaring tightening bail laws an emergency priority, an action that removes the normal 60-day period Texas lawmakers usually have to wait before they can consider any legislation, he went a step further: he called for legislation to hold judges and district attorneys accountable "for reckless decisions compromising the safety and security of Texans."

That call to action has taken shape in two separate bills — House Bill 17 and Senate Bill 21 — making it easier to remove elected prosecutors and judges for misconduct.

Under H.B.17, prosecutors could be removed from office for refusing to prosecute specific criminal offenses as a matter of policy.

S.B. 21, meanwhile, would authorize disciplinary investigations of judges who fail to comply with Texas bail laws, which could result in their suspension or removal from the bench.

A spokesperson for the Texas District and County Attorneys Association declined to comment on the proposed legislation and the state's bail laws. The National Center for State Courts declined to comment on the proposed bills. The Harris County District Attorney's Office did not respond to requests for comment.

Flynn, the DA in Erie County, told Law360 that he has "concerns" about a separate branch of government seeking to hold prosecutors accountable for their discretion.

"I do have great concerns about anyone else coming in and telling me how to do my job," Flynn said. "The voters are the ones that I work for. And if the voters of my county don't like the way I'm doing my job, well, then they can vote me out of office. And that's how democracy works. And that's how it should be."

--Editing by Karin Roberts.

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