This is a rare place where Democrats have leverage. Make good use of it.
With an eye on Harris County, Texas lawmakers are considering new measures aimed at keeping more defendants accused of violent and sexual crimes behind bars as they await trial, building off recent changes that clamped down on the use of cashless bail in state courts.
Republicans have made the issue a priority in recent campaigns and legislative sessions, arguing that stricter bail laws are needed to curtail a rise in the number of defendants, particularly in Harris County, charged with new crimes while out on bond. State GOP leaders have pinned most of the blame on local Democratic judges, who they accuse of setting overly lenient bail conditions.
Democrats and civil rights groups say the GOP’s 2021 bail overhaul, Senate Bill 6, has done little to address the problem because it sets limits only on no-cost and low-cost bonds — meaning those who can afford to post bail can still do so, while only those without enough cash are forced to stay behind bars.
Opponents of the GOP bail restrictions have pointed to a Chronicle analysis that found most people accused of murder while out on bond in Harris County had secured their release by paying bail.
Restricting the use of cash bail would require amending the Texas Constitution, a step proposed by Republican lawmakers in 2021 that failed to attract enough support from Democrats.
This session, state Sen. Joan Huffman — the Houston Republican who authored the GOP’s priority bail bill in 2021 — is planning to take a second crack at an amendment that would authorize judges to deny bail “under some circumstances to a person accused of a violent or sexual offense.”
For now, the Texas Constitution places firm restrictions on when judges can deny bail outright, generally guaranteeing defendants a right to pretrial release unless they are charged with capital murder or meet certain criteria for repeat violent offenses. Two years ago, Republicans sought to expand those conditions, but the measure died in the House over opposition from Democrats who said the proposed changes were too broad.
Huffman has said she also wants to expand the 2021 GOP bail bill to deny no-cost personal bonds to defendants charged with violating family violence protective orders and unlawfully possessing a weapon as a convicted felon. The bill already prohibits the use of personal bonds for some 20 violent and sexual crimes.
It also provides judges and magistrates with more information about a defendant’s criminal history and requires them to consider that factor, among others, when setting bail.
Local felony court judges, for their part, say they have set higher bail amounts for felony charges in recent years, but are still hamstrung in most cases by the bail guarantees in the state constitution.
State Rep. Ann Johnson, D-Houston, said she is “open” to a bail-related constitutional amendment, but only if Republicans also commit to changes aimed at tackling Harris County’s enormous backlog of cases and reducing mass incarceration.
“I think what we have to be mindful of is not overdoing it. We’re talking about changing the foundation of our constitutional requirements,” said Johnson, the former chief human trafficking prosecutor in Harris County. “If I thought that would make you safer, I’m open to those things. But that, in the absence of the investment in the infrastructure of the public safety system, the criminal justice system, is expedient. Yeah, it sounds good. But I don’t know that it has the effect that we all desperately want.”
To put it mildly, putting more people in jail so they can just wait there until their trial is a really bad idea right now. Ensuring that the only people who get stuck in jail are those who can’t afford to buy their way out is both a bad idea and almost certainly unconstitutional. The price of any cooperation from Democrats, who have to vote for this in at least some numbers to meet the two-thirds threshold, starts with adding more felony court judges – Harris County has received exactly one new district criminal court judge since 1984, when there were two million fewer people living here – and really needs to include a lot more funding for mental health services for the county jail. Really, that should read “expanding Medicaid”, because that would provide a ton of funding for mental health services and it would be mostly paid for by the feds, but we know that’s not going to happen. It would still be a good idea to make the point about it at every opportunity anyway.
This is one thing Republicans can’t do on their own. If they want our help, we need to have a list of things for them to agree to first. Don’t fumble the chance, y’all.