Bail reform is a crucial issue for Texas and needs to remain a leading priority for all of us in reviewing our criminal justice system. We’ve long argued that what the state needs is a two-part reform that ensures that the truly violent remain behind bars while awaiting trial while also ensuring that nonviolent offenders can quickly return to their lives as their case works its way through the system.
The sad part is that too often Texas gets it wrong on bail — it lets violent people out who can post a few thousand dollars bond, while retaining impoverished residents who are accused of nonviolent crimes and have no violent history.
Fortunately, one part of needed bail reform is inching forward with a new law that makes important changes aimed at keeping violent people in custody while awaiting trial.
The brutal murder of Texas State Trooper Damon Allen underscores the need for such reform.
Allen was ambushed, shot and killed in 2017 during a traffic stop by a repeat offender out on bail on another charge. DaBrett Black, who was charged with the murder, had previously been convicted of assaulting a Smith County sheriff’s deputy and had recently been arrested on charges that included evading arrest and aggravated assault on a public servant. Unaware of the prior criminal history, a justice of the peace released him on bond before the deadly encounter with Allen.
With the passage of SB 6, also known as the Damon Allen Act, during the second special session, many in the Texas Legislature and Gov. Greg Abbott seemed to declare bail reform to be a done deal.
At best, it’s a half done deal.
The measure, which the governor signed into law Monday, cracks down on violent repeat offenders, effectively making it tougher for them to be released on bail while also blocking their release on personal bond, a much overdue reform. But a poor person who isn’t violent, poses no threat to flee, and can’t make bail can expect to sit in jail for weeks, if not months, awaiting their day in court.
That’s not fair or just, nor is it much different from the uneven application of bail that drew the ire of the federal courts. Federal judges reviewed bail practices in Harris and Dallas counties in recent years and ruled that disparities based on whether a person had enough cash to post bail are discriminatory and unconstitutional.
In addition to restricting judges from approving personal bonds for defendants charged with certain violent crimes, the law also directs judges and magistrates to look at a defendant’s criminal history prior to setting bail. Another provision establishes a uniform court management system operated through the Office of Court Administration to alert judges to reasons that the accused should not be released before bail is set on a new charge.
If properly implemented, judges could more effectively assess the risk of all defendants, make better-informed decisions about bail and determine the terms of pretrial supervision.
Despite these changes, many of which this newspaper supports, Texas’ bail system is still stuck in a cash bail system that isn’t a good measure of a person’s risk to the community, let alone the proper way to determine who stays in jail and who gets to go home. In his State of the Judiciary address in 2019, Texas Supreme Court Chief Justice Nathan Hecht said the percentage of the Texas jail population awaiting trials has skyrocketed from 32% to 81% in the past 25 years. And most of those, he said, were nonviolent, were unlikely to reoffend, weren’t flight risks and remained in jail while awaiting trial only because they were poor.
Jailing those who don’t need to be jailed costs Texas taxpayers about $1 billion annually, and puts jobs and families at risk. That only exacerbates a long list of social problems and reinforces a sense of unfairness in our legal system. The new law is a step forward on bail reform, but it cannot be the last step. Our criminal justice system is far from where it should be.
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