Gov. Greg Abbott prioritized changing how bail is set. He isn’t addressing people stuck behind bars because they can’t afford to pay.

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Preston Chaney was booked into Harris County Jail last April, accused of stealing lawn equipment and meat from someone’s garage. If he’d had $100, he could have posted bail and walked free within days.

Instead, the 64-year-old Black man was held for months, caught the coronavirus and died from COVID-19 in August while awaiting trial.

A year earlier, Alex Guajardo didn’t have to pay any cash to get out of the same jail after being accused of assaulting his pregnant wife Caitlynne, according to court records. He was out on bond for an intoxicated driving charge when the assault occurred. The court ordered Guajardo to stay away from the family home and released him on a personal, no-cost bond.

Two days later, Guajardo was arrested again, this time for allegedly stabbing and killing his wife.

The deaths of Chaney and Caitlynne Infinger Guajardo have both been blamed on failures in the complex bail system. Courts set bail by deciding what restrictions are needed to release people who are legally presumed innocent before their criminal case is resolved. The bail release system has two key goals: protect public safety and incentivize defendants to come back for their court dates.

Most often, whether someone gets out or not depends on money.

Last week, Gov. Greg Abbott made changing bail practices an emergency item for state lawmakers this legislative session, meaning they can take up the matter earlier than other legislation. But Abbott has made clear his priority is to address practices that let Guajardo out of jail, not the ones that kept Chaney in.

In his State of the State address, Abbott said lawmakers must fix the bail system “that recklessly allows dangerous criminals back out onto our streets.” The governor wants more training for judicial officers who largely make cash bail decisions and a tool for assessing a defendant’s risks of missing court dates and endangering the community. Those goals are expected to be addressed in the not-yet-filed Damon Allen Act, named after a state trooper killed during a traffic stop while the suspect was out on bond.

Abbott has repeatedly affirmed that the emergency legislation would not specifically address what criminal justice experts call bail reform: halting the discriminatory jailing of poor people that repeatedly has landed Texas counties in federal court. He said he will consider such measures in other bills, but those efforts are not deemed a priority.

“We’re going to separate the Damon Allen Act and what I’m expecting from bail reform there,” Abbott told The Texas Tribune. “Separate from that, I told [lawmakers] that I am open to considering other bail reform issues so that we don’t basically have a prison for the poor who don’t have the ability to get bailed out for petty crimes where they pose no danger to our communities.”

Bail reform advocates bemoan Abbott’s new urgency and revamped proposal as a step away from true reform which focuses on fixing discriminatory money bail practices. They also worry it could enhance racial disparities in the criminal justice system and lead to more poor, presumably innocent people accused of minor crimes lingering in jail.

As is the case nationwide, Black people are more likely to be jailed in Texas than white people. Though the state’s population is about 13% Black, 29% of people held in Texas jails in 2015 were Black, according to The Vera Institute. In 2019, about a third of inmates in Texas prisons were Black.

“The way [Abbott] laid it out shows clearly that he’s far more interested in maintaining the status quo and fear mongering than really looking at our bail system that keeps Black and brown people locked up,” said David Villalobos, a criminal justice reform coordinator with the Texas Organizing Project.

Evolving bail fights

In Texas, almost everyone who is arrested has a constitutional right to be released on bail. The exceptions are capital murder defendants or people accused of certain repeat felonies or bail violations. The U.S. Bill of Rights says bail can’t be excessive, as criminal defendants are still legally presumed innocent.

Still, most of the time, bail decisions are based solely on money.

When a court sets cash bail, the full amount can be paid to the court which will refund the money if the defendant follows the conditions of the bail bond. More often, however, the accused opts to pay a nonrefundable percentage, usually 10%, to a private bail bonds company that fronts the full cost and keeps track of the defendant. If a defendant’s bail is set at $10,000, for example, a payment of $1,000 to a bonds company can get them out of jail.

The amount is often set automatically based on the alleged crime. If someone has access to enough cash, they can get out of jail. But a similar defendant without money could be stuck behind bars for months.

Bail reform advocates for years have fought the cash bail system, and multiple federal courts have ordered several Texas counties to change their pretrial practices. A federal judge in 2017 found that Harris County’s steadfast reliance on cash bail for defendants facing low-level charges was unconstitutionally discriminatory against poor people. The county has since significantly changed its release decisions for misdemeanor defendants, and a similar civil rights lawsuit is ongoing for felony cases.

Recently, the battle over cash bail has seen uproar over inmate deaths in jails overcrowded during the pandemic and high-profile homicides in Harris County allegedly committed by people released on low- or no-cost bonds. Many Republicans and law enforcement officials in the county have fought against changes prompted by the lawsuits, arguing they let too many people out without restrictions and risk public safety.

Abbott unsuccessfully promoted a bail bill similar to his current proposals two years ago. But the new attention on Harris County’s jail release practices — and a recent, nationwide increase in homicides — have brought more Republican lawmakers and law enforcement officials around to Abbott’s idea.

“We have now what I call bond abuse … there’s a balance here, it’s gone too far in the other direction,” state Sen. Paul Bettencourt, R-Houston, told the Tribune last week.

Court battles and high-profile homicides

Federal courts have tried to rein in an overreliance on preset money amounts without considering the defendant’s specific circumstances. Harris County, for example, was told by a conservative appeals court that it could continue setting cash bail in misdemeanor cases. But it also said arrestees who claimed they could not afford their bail would be entitled to an individual bond reduction hearing within two days of arrest.

Since its first loss in federal district court, Harris County and its newly elected judges have revamped the pretrial release system. Most misdemeanor defendants are now released automatically on a personal recognizance, or PR, bond. Defendants released on such bonds only have to pay if they later break conditions of their release.

A federal court-ordered report found that the new misdemeanor bail system let many more people out of jail before trial, and the released defendants were not any more likely to commit new crimes while on bond.

But Houston law enforcement officials have said recent homicides committed by felony defendants out on bond depict a broken bail system and are demanding change. Crime Stoppers of Houston last month listed dozens of people who were killed in Harris County since 2018 while the suspects were out on bond.

Houston Police Chief Art Acevedo loudly blames crime on “judges who allow violent suspects to violate bond after bond, commit murder and then bond again.”

An increase in homicides and aggravated assaults across Texas and the nation last year, and perhaps a heightened awareness of bail practices following the lawsuits, has sparked outrage and fear. Sandra Guerra Thompson is director of the Criminal Justice Institute at the University of Houston Law Center and the deputy monitor in Harris County’s misdemeanor lawsuit settlement. She said it’s unclear whether more crimes are being committed by those out on felony bonds since the court case or if people are just noticing it more. Much of the recent uptick in Houston violent crime is attributed to people with no criminal history, she said.

“There have always been anecdotes,” she said, conceding that each case is tragic.

Bettencourt filed bail legislation last month named after Caitlynne Infinger Guajardo, which quickly garnered support from police officials.

His bill would rely more on the use of cash bail — prohibiting courts from releasing a defendant on a no-cash bond if he or she were already out of jail on a no-cash bond and then arrested again, as was Alex Guajardo. Bettencourt’s bill would also require a new minimum cash bail of $10,000 in each case for someone accused of three or more felonies.

Federal courts have ruled that a mechanical use of preset cash bail amounts without individual consideration is unconstitutional.

“You just shouldn’t be giving out PR bonds like popcorn, especially with people that have already had some strong indication of violent behavior,” Bettencourt told the Tribune last week.

State Sen. John Whitmire, D-Houston, who has worked on bail legislation for years, said he is frustrated by lawmakers newly jumping into the arena focusing on locking more people up without looking to help those who are unnecessarily detained. He dismissed the idea of a minimum bond amount, saying it would not necessarily keep violent people in jail.

“A $10,000 bond might sound tough, but bad guys come up with $1,000 all the time,” he told the Tribune.

Though the longstanding push to release more poor defendants accused of low-level crimes is often pitted against a desire to keep people considered to be dangerous behind bars, those efforts aren’t always in opposition.

For several years, Whitmire and state Rep. Andrew Murr, R-Junction, have partnered in a bipartisan effort for courts to make more risk-based bail decisions and to consider the financial status of defendants. Their goal was to release more poor, low-risk defendants from jail at no cost while, at the same time, those deemed a high risk would be detained before trial without the option of bailing out with cash.

“I run into people that … care about one side of the issue and not the other,” Whitmire said.

Reform advocates on the defense

Attempts to pass the Damon Allen Act failed two years ago. The version that passed the House would have required courts to use a statewide risk assessment tool, consider criminal history when making bail decisions — still largely cash-based, and give training to judicial officers who set bail, much like what Abbott has said he wants this year.

Bail reform advocates worried that the risk assessment could be prejudiced against Black defendants, as arguing criminal history factors without proper consideration could perpetuate existing racial disparities in the criminal justice system. Others turned away from the bill because they said its language would prohibit judges from automatically releasing most misdemeanor defendants from jail on a no-cost bond, as is done in Harris County.

Coming into the 2021 legislative session, many bail reform advocates, losing faith in risk assessment strategies, were originally going to take a step-back approach to consider new strategies and best practices to present in 2023. But with Abbott declaring bail an emergency item, that’s no longer possible, instead putting them on defense against what they fear will be backward steps from reform.

“Texas needs to go back to the drawing board and make sure that changes to a pretrial system are actually rooted in safety and justice,” said Nick Hudson, a policy and advocacy strategist with the American Civil Liberties Union of Texas. “What that means is making sure that changes to our pretrial system are rooted in legal standards and evidence.”

Whitmire is still hoping he can find a way to work with the governor on the emergency bail bill and address wealth-based detention. Though Abbott does not want any language in the emergency bill about the financial status of defendants, the Democratic senator said he is trying to get Texas counties out of losing costly battles in federal court.

He said he is continuing to talk with Abbott, as well as Republican Texas Supreme Court Chief Justice Nathan Hecht, who for years has supported bail reform efforts to keep less people detained because they are poor.

“The problem is [Abbott] is really fixed on just his language,” Whitmire said. “I can’t get him to understand the legislative process: You don’t always get what you want.”

Disclosure: The University of Houston has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.