Overhaul of state bail system on the rocks after Democrats break quorum

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Photo by Thomas Hawk, published under Created Commons 2.0

Austin advocacy groups opposed bill as a threat to indigent defendants

A proposal for overhauling the Texas bail system gained steam at the legislature over the weekend before stalling dead in its tracks Monday when Democrats left the state to deny GOP lawmakers a quorum.

The quorum break targeted an unrelated election bill similar to Senate Bill 7, which Democrats killed using the same quorum-busting tactic in May.

But the walkout was also welcome news to opponents of Senate Bill 6 and House Bill 2, identical bail bills that passed out of separate committees of the House and Senate during marathon hearings Saturday.

Chris Harris

Chris Harris, a member of Austin’s Reimagining Public Safety Task Force and the criminal justice director of advocacy group Texas Appleseed, was one of dozens of opponents to testify against the proposal at the hearings, raising concerns over the potential impact on indigent defendants.

He expressed relief Monday after the quorum break, writing on Twitter, “Bail legislation that threatened to explode local jail populations, cause more disproportionate harm to black, brown & poor communities, & further enrich the for-profit bail bond industry, mercifully died (for now) when Texas Democrats broke quorum before it could be passed.”

Scott Henson

Scott Henson, policy director of Just Liberty and author of the criminal justice blog Grits for Breakfast, said he had spent the morning preparing advocacy materials opposing HB 2 when the news broke. “Never (have I) been more happy to have hours of work made irrelevant,” he wrote.

This is the second time that a major bail bill became a casualty in a political fight over unrelated election legislation. During the regular session, HB 20—a bill very similar to the current SB 6 and HB 2—nearly became law but didn’t get a final vote in the House on account of the quorum busting.

The regular session bail bill won the support of nearly all Republicans and some Democrats, passing the House by a vote of 98-46 and the Senate by a vote of 21-10. But late amendments resulted in differences between the chambers’ versions, requiring meetings to iron out the differences and a final reconciliation vote. That delay ultimately proved fatal when House leaders placed HB 20 on the floor calendar after SB 7, the election bill.

Greg Abbott

Governor Greg Abbott revived hope for the bail proposal when he placed it on the agenda of the special session that began last Thursday.

‘Balanced effort’

During hearings Saturday on the bail legislation, Republican lawmakers presented their proposal as a corrective to bail practices in some jurisdictions, particularly Harris County, which they view as too lax.

SB 6 and HB 2 would require the judiciary’s Office of Court Administration to develop and maintain a public safety report system that judges would have to rely on when making bail decisions. The tool would give judges information about defendants’ past convictions, other pending charges, and previous failures to appear in court following release on bail.

The legislation would restrict judges from releasing on personal bond defendants charged with certain crimes, including any offense involving violence, or any felony offense committed while already out on bond.

Reggie Smith

“HB 2 is a balanced effort to address the increase in violent and habitual offenders being released on personal bonds, along with low cash bonds, which has resulted in increased crime within our communities,” said Representative Reggie Smith (R-Sherman), who is carrying the bill in the lower chamber.

“HB 2 is not a means to imprison low-level or indigent offenders. Instead this legislation is focused on meaningfully reforming the bail system to ensure a balanced and individualized process so that defendants are not subject to higher than necessary bail.”

Criticisms of bail bill

Justin Martinez

For critics of the bill, the devil is in the details. They pointed to numerous provisions that caused them concern. For instance, Justin Martinez of the Texas Criminal Justice Coalition took issue with giving judges information on defendants’ past failures to appear in court following release on bail.

“Just because a person has a failure to appear doesn’t necessarily mean that that was due to a willful choice to not show up to court. This can be due to other causes,” he said, citing access to transportation, child care, and work-related issues as possible causes for failure to appear, as well as the “sheer bureaucracy and complexity of the criminal legal system.”

Chas Moore

Chas Moore, founder of the Austin Justice Coalition, took issue with denying personal bond to anybody “charged with an offense involving violence.” That provision was too sweeping, he reasoned, as it could result in an indigent defendant being jailed simply for getting in a bar fight.

“I had the privilege of seeing Representative Bucy at the soccer game a couple of weeks ago,” Moore said, referring to John Bucy III (D-Cedar Park), who sits on the committee that was hearing the bill. “He wasn’t drinking to my knowledge, but let’s say he was, hypothetically, and he gets into an altercation or whatever and I go over to protect him.”

“And that’s just like a basic bar fight. The way this bill is written I would go to jail. And if we do this type of legislation here in Austin where we consume alcohol on a daily basis in record amounts we’re gonna see so many people locked up and incarcerated when we don’t have the room for it.”

Likewise, Henson said that HB 2 would “boost local jail incarceration rates and put upward pressure on property taxes with no particular benefit to public safety but many identifiable harms both to the county’s bottom line and to defendants.”

According to Henson, the bill would particularly harm rural and border counties that suffer jail overcrowding. He advocated for leaving judges with more discretion to release defendants, saying, “Local judges are the best able to judge for their community what that community needs.”

Chris Harris of Texas Appleseed said, “The most pervasive problem with the bail system is the tens of thousands of folks who are unable to buy their freedom due to an inability to pay bail. (HB 2) leaves this problem mostly unaddressed if not exacerbating it.”

Texas should consider adopting a different model, he suggested: “We see many states that have more stringent rules allowing preventative detention than we see in Texas, but almost always those increases in allowing judges to preventatively detain people come with severe restrictions on the use of cash bail, thereby enabling more people to attain pre-trial freedom.”

“So where we see increases in preventative detention…we would also be seeing vast changes to the cash bail system to ensure that poor people are allowed the opportunity of pretrial freedom that they deserve due to the presumption of innocence that we hold in this country.”

Other organizations that testified against SB 6 and HB 2 included the Texas Criminal Defense Lawyers Association, ACLU Texas, Texas Civil Rights Project, Grassroots Leadership, Texas Jail Project, Texas Fair Defense Project, and The Bail Project.

Crime victims demand change

On the other hand, several crime victims and victim advocates testified in favor of the pending bail legislation, saying that it would prevent judges from releasing dangerous defendants.

Andy Kahan

Andy Kahan, the director of victim services for Crime Stoppers Houston, held up a poster with portraits of Harris County murder victims. “These are the victims of the over 100 people who have been murdered by defendants released on multiple felony bonds, felony PR (personal recognizance) bonds, and/or bond forfeiture in Harris County in the last few years,” he said.

“Of the 125 murders, 85 have occurred in 2020 and 2021…this is the result of repeat offenders who are released time and time again.”

Layla Steele and son Zeus

Kahan told the story of one recent victim, 24-year-old Layla Steele, who was shot and killed July 1st by a defendant who was out on seven felony  bonds. “He had three prior felony convictions and was a registered sex offender. While on bond he was charged for assault with assault with intent to impede breathing—strangling somebody to death—failure to register as a sex offender, assault, evading arrest, felon in possession of a weapon.”

“And he kept getting bond after bond after bond. Motions to revoke were filed, filed, and filed…Layla Steele is now dead and a 1-year-old (son) named Zeus has to grow up without a mother.”

Caitlynne Guajardo

Similarly, another witness testified that her daughter, Caitlynne Guajardo, had been fatally stabbed by her son-in-law, Alex Guajardo, after the latter was arrested on a family violence charge and then let out of jail within 18 hours on a personal recognizance bond.

“My daughter was lost to the bail system,” said Melanie Infinger. “She was 19 weeks pregnant and left behind a beautiful daughter.”

Infinger said that Alex Guajardo was “a danger to society” and had repeatedly beaten her daughter Caitlynne and killed her cat to torment her. He was also awaiting trial for DWI and leaving the scene of an accident.

“He was in jail. We thought that she was being protected,” said Infinger. “I had voiced concerns that someone might bond him out. She said, ‘Nobody’s gonna let him out.’” Hours later she got a call from the medical examiner.

Joan Huffman

Senator Joan Huffman (R-Houston), the author of SB 6, said, “We have failed our communities, we have failed our citizens, definitely we have failed the victims, and it’s time to do something about it.”

Joe Moody

But critics of the bill pushed back, saying it was wrong to expand the cash bail system as a response to such violence. “The reasoning behind this is we are scared of violent offenders. So our answer here is to do violence to our liberty because we are scared,” said Representative Joe Moody (D-El Paso), who has worked as both a defense attorney and prosecutor.

Moody conceded that the bill had “some good things in it,” such as “making sure judges have the information they need and making sure they have training,” but he repeatedly attacked the state’s continuing reliance on cash bail.

Others questioned the purported link between murders like the ones cited in Harris County and bail practices. In his Grits for Breakfast blog, Henson cited statistics that he said showed that very few people released on multiple bonds ever commit homicide. And Chris Harris described a recent rise in murders in Harris County as part of a broader national trend, not the result of bail practices in the county. “Sixty of the 69 biggest police departments in the U.S. reported an increase in murders in 2020…we’re looking at a national issue that’s pervasive in the country so the likelihood that it has to do with any particular reform passed in any particular city is negligible.”

Charitable bail organizations

Finally, critics also took aim at provisions of the bill imposing new regulations on charitable bail organizations. These charities would have to register in each county where they are active and report monthly to the sheriff on all defendants for whom they paid a bail bond.

The legislation empowers sheriffs to block a charitable bail organization from paying bail bonds for a year if “at any time the organization is considered to be out of compliance with the reporting requirements of this article,” according to the text of the two identical bills.

Joe Fonseca

Joe Fonseca III, a bail disruptor for The Bail Project based in San Marcos, testified that his organization was already regulated under state and federal laws governing charities and described SB 2 as “government overreach.”

“Charitable bail organizations are a community response to the humanitarian crisis of cash bail,” he said. “We are the grandmothers, the churches, the community-based organizations that rally to support someone when they are at risk of losing everything. We should not be a target for government overreach.”

Fonseca said that his organization has been active in Texas for 15 months and has bailed out 565 people in Bexar, Harris, Hays, and Smith counties. In addition to paying defendants’ bail, the organization provides a support plan for each client including court reminders, rides to and from court, and referrals to service providers such as housing and employment assistance.

One of the House Democrats who voted against the bail bill in committee, John Bucy, criticized the charity provisions in the bill as “red flags.” He told the bill’s author, “I’d like to see us remove these sections.”

Next steps

James Talarico

The fate of the bail bill now hinges on whether Democrats return for any part of the special session. That appears unlikely at present. “Special session is over,” declared Representative James Talarico (D-Round Rock) in a tweet Monday. “We’re prepared to stay out of Texas for the rest of the session.”

Nathan Johnson

Before Democrats skipped town the bail bill appeared to be well on its way to becoming law. The identical House and Senate versions of it passed out of committee Saturday with bipartisan support. In the Senate, the Jurisprudence Committee approved it 4-0 with the support of Democrats Nathan Johnson of Dallas and Juan Hinojosa of McAllen.

Johnson said while questioning a witness Saturday that he supported SB 6 because it addresses pre-trial detention of violent offenders, not non-violent ones. “We do have a problem in Harris County. We had a witness that testified earlier that there are spikes in crime all around the country, not just in Houston. And that’s a valid point, but it doesn’t mean that there aren’t people who are being released on a PR bond who have prior violent convictions that are going on to commit more violent convictions,” he said.

On the House side, the committee approved the bail bill 9-6 with one Democrat vote, and an accompanying joint resolution passed by a vote of 10-5.

The joint resolution is needed because the bail bill can’t take effect without a constitutional amendment. Under section 11 of the constitution’s Bill of Rights, nearly all crimes in Texas are bailable, except homicide, certain repeat offenses, and certain bail violations. That means that a defendant with sufficient wealth can get out of jail regardless of the danger he might pose to society or the violent nature of his crime. The constitutional amendment proposed in connection with the bail bill would allow judges to deny bail to such a defendant.

Nathan Hecht

Chief Justice Nathan Hecht has called for such an amendment in each of his past three State of the Judiciary addresses. He said in his latest address March 23, “It’s wrong to lock up people only because they’re poor. It offends basic notions of liberty and humanity. And it’s dangerous to release defendants only because they can afford to make bail.”

Trust indicators: Bulldog reporter Daniel Van Oudenaren is a journalist with 12 years experience in local, state, and international reporting.

 

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