Republican bail reform bill poses threat to poor Texans, activists

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Members of the Texas Senate Committee on Jurisprudence held their first hearing this week over Senate Bill 21, a controversial bail reform bill backed by Republicans.

The purpose of the bill according to its author Sen. Joan Huffman (R-Houston) is to prevent repeat violent offenders from committing new crimes after being released on personal bond. A personal bond is an agreement to appear in court that allows a defendant to be released without any financial obligation, unlike a cash bond or a surety bond with a bail company.

Opponents who testified against the legislation Thursday warned that language of the bill goes much further than simply attempting to keep violent criminals locked up.

“This is a work in progress, I know this bill is not perfect, I know it’s not ready to be passed,” Huffman, who chairs the committee said at the beginning of the hearing. 

Under the text of the bill, a person charged with a crime would not be eligible for release if they have recently failed to appear in court for another offense, if they have been charged with any other crime after being released on bond, or if they have been recently convicted of a felony, Class A or B misdemeanor. That includes charges for resisting arrest, possession of marijuana, prostitution and many other non-violent offenses. 

To be clear, so-called violent repeat offenders would still be able to be bailed out of jail, just not on personal bond, which waives the financial obligation meant to incentive someone to appear in court.

Committee Vice Chair Juan “Chuy” Hinojosa (D-McAllen) raised concerns throughout the meeting that the state-mandated conditions for being able to be released on bond would take away discretion from judges to make those decisions themselves. 

When Harris County First Assistant District Attorney David Mitcham presented a recent case of a defendant who was charged with multiple counts of robbery and repeatedly released on bond, Hinojosa asked, “Isn’t it more of the failure of the judges not doing their job?”

Jacquelyn Carter, the mother of a 26-year-old Houstonian who was killed by a defendant free on felony bond, said she believed someone with two felony charges shouldn’t be released on bond, but placed her frustration with judges.

“I’m angry with the judge. I’m angry. I’m very angry. I’m more angry at the judge than at him,” Carter said, referring to her son’s killer.

Others who testified had concerns about why large sections of the law were needed in the first place when the responsibility of assessing a defendant’s danger to the public belonged to judges and accompanying magistrates. 

“If people are not liking the decisions these judges are making, judges are elected officials in Texas — they can be voted out,” said Jessie Taylor, a criminal defense attorney from Austin who testified against the bill. “They don’t need their hands tied.”

“If we just wanted a black box to be making these decisions based on rules promulgated by the legislature, we wouldn’t need judges and the discretion that they can exercise,” Taylor said. 

Mike Fields, a former Republican judge in Harris County Criminal Court at Law No. 14, testified against the bill calling it an “overreach” and a return to the bad old days.

Fields said he was an original defendant in the O’Donnell lawsuit, the major lawsuit that was filed against the county’s wealth-based bail detention system and which ended in a settlement that allowed for the release of a majority of misdemeanor defendants.

“I switched from my position of opposition to the O’Donnell lawsuit to agreeing with it, I was only one of two judges who did,” Fields said. 

He said that the 72 homicides in Harris County committed by people out on bond in 2020 — a figure cited by Harris County District Attorney Kim Ogg earlier in her testimony in support of the bill — were largely done by defendants with surety bond, or bonds posted by a bail bond company.

“I learned after 20 years of being a Republican judge in Harris County, that money does not make us safer,” Fields said. “Conditions make us safer. Assessment makes us safer. Using smarter strategies to keep people who need to be incarcerated, incarcerated, and those who don’t out. That’s what makes us safer.”

Fields said the conflation with misdemeanor and felony cases had led to legislation like SB 21 that would cast a broad net hurting taxpayers and slowing the work of criminal courts. 

Emily Garrick, an attorney with the Texas Fair Defense Project, a criminal justice nonprofit and one of the groups involved in the O’Donnell v. Harris County lawsuit, said SB 21 would allow people who don’t have money to stay in jail and those who do to be released from jail despite having similar charges — a violation of the decision by federal judges that ruled Harris County’s wealth-based pre-trial detention system to be unconstitutional for that very reason.

Another aspect of SB 21 grilled during the hearing was the bill’s restrictions on charitable bail organizations, or groups (often churches or advocacy groups) that organize bail funds to help defendants who could otherwise not pay for their release. Among other things, the bill would only allow charitable bail organizations to pay bail bonds for defendants charged with misdemeanors and would restrict them from paying no more than $2,000 for each defendant they want to help. 

Chief Public Defender for the Bexar County Public Defender’s Office Michael Young testified against the restrictions on charitable bail organizations. He said groups like the San Antonio Area African American Community Fund and Texas Organization Project were helpful in ensuring recidivism and court appearances.

“They take them under their wing, they help them get a job,” Young said. “They’re monitoring them, I guarantee you, much closer than a surety bond company ever will because they’re actually committed to those persons appearings [in court] because they put up cash money for that.” 

The Bail Project, a national charitable bail organization, said the bill would only expand pre-trial detention and help pretarody bail companies. 

“As a result of SB 21 well over half of our Texas clients, your constituents, who had favorable outcomes without incidents would have been incarcerated for the duration of their cases,” testified Lauren Roseles, operations manager for The Bail Project.

“With SB 21 they would have languished in jail for weeks and months,” she said.

In an interview with the Signal, Liyah Brown, the legal director for the Texas Civil Rights Project’s Criminal Injustice Program, said the bill would lead to more Black and Brown people who are presumed innocent being in jail without a conviction. 

“It’s very cute to pretend that this is about violent criminals,” Brown said. 

She said if the bill was about public safety, it wouldn’t matter who was bailing defendants out.

“The history of community bail funds is that they are alternatives to corporations when corporations are charging bail and interest, and penalties and fees,” Brown said. 

Brown said it was community bail funds that bailed out activists when they were protesting in Black Lives Matters marches and other demonstrations against police brutality. 

“It’s not just retaliation against Harris County, it’s not just a relation against poor people, there is a very direct line between the activists and the progress that we saw from people taking to the streets last summer and to what Senator Huffman is proposing,” Brown said. “Otherwise there would be no reason to exempt the corporate bail industry from the restrictions in SB 21.” 

“Look at John Lewis’ arrest record,” Brown said. “You look at the paper — repeat offender, habitual offender — but that was good trouble.”

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