AUSTIN — On election night, Texans backed Gov. Greg Abbott’s legislative wish list — including over 60% of Texans voting to require the denial of bail for defendants accused of certain violent felonies.
Specifically, Proposition 3 requires judges magistrates to deny bails to those defendants if they believe them to be a flight risk or a danger to the community. Judges or magistrates will examine these offenses for a potential bail denial:
- Murder;
- Capital murder;
- Aggravated assault if the person:
- Caused serious bodily injury or;
- Used a firearm, club, knife or explosive weapon;
- Aggravated kidnapping;
- Aggravated robbery;
- Aggravated sexual assault;
- Indecency with a child;
- Trafficking of persons;
- Continuous trafficking of persons.
Judges or magistrates will also be required to prepare a written order including a statement justifying their decision.
‘Lawmakers must choose’
Expanding pre-trial detention has been a long-time priority of Abbott. He pushed for the Damon Allen Act until it passed in 2021, which among other things, required judges or magistrates to set cash bail amounts for certain offenses.
At the start of this session in February, Abbott once again prioritized bail reform measures — declaring it an emergency item on the legislative agenda.
“Lawmakers must choose: support the safety of the citizens they represent, or the criminals who kill them,” Abbott said back in February.
While not all of Abbott’s key bail reform proposals passed, Senate Joint Resolution 5 did and got put on the ballot as Proposition 3. At the time it passed the legislature, House sponsor state Rep. John Smithee, R-Amarillo, hoped it would pass overwhemingly.
“The voters on these types of things seem to have clearer eyes sometimes than the legislature does,” Smithee, who announced his retirement on Friday, said in June. “I predict this is going to pass overwhelmingly, and our goal should be around 90%.”
According to unofficial results from the Texas Secretary of State, Proposition 3 finished with 61.14% of Texans approving — the third lowest percentage among the 17 proposals.
‘Historic due process safeguards’
Since the beginning of the legislative session, the nonprofit advocacy group the Bail Project drew the ire of bail reform supporters. Among their other advocacy work, the Bail Project helps indigent defendants pay their bail — a service they no longer operate in Texas.
“While Proposition 3 does open the door to increased pretrial detention — which we were opposed to fundamentally within our organization — it also does make Texas the first state in the country to adopt some historic due process safeguards,” Emma Stammen, policy strategist at the Bail Project, said.
Specifically, Stammen praised the amendment guaranteeing the right to a legal defense at a hearing when the option to hold the accused without bail is on the table.
According to Garrett Cleveland, a public defender in the Hill Country Regional Public Defender office, many counties do not have public defenders assigned during the initial hearing when bond is set. In those cases, the public defender will be assigned between the initial appearance and the arraignment — or sometimes during the arraignment hearing itself. While the bond amount can be changed at the arraignment, Cleveland contends clients could have better outcomes if an attorney was present from the beginning.
Stammen also praised the high evidentiary standard needed to have a no bond determination. To deny bail for being a willful flight risk, a judge or magistrate must use a preponderance of evidence — or more likely than not — standard. To deny bail for a threat to the community, a judge or magistrate must use a ‘clear and convincing’ evidence standard.
“The impacts of how this will impact pre-trial detention rates and jail population really comes down to how it’s implemented,” Stammen said. “I think the due process protections themselves are net positive and that they are really a step in the right direction towards creating a system that works better for everyone else. If they are actually adhered to and implemented correctly.”
‘Barely a silver lining’
One of the people highly skeptical of how Texas will implement this amendment is Krish Gundu, the co-founder of the Texas Jail Project.
“The silver lining is barely a silver lining,” she said about the due process protections. “What is already accessible and available to people in county jails is not happening. There’s a huge gap in what is mandated, what is policy and what is practice.”
Gundu, similar to the Bail Project, believes the state needs less pretrial detention, not more.
“When your county jail system is already the largest warehouse of mental illness in the state and jails are rapidly opening up programs like jail-based competency restoration, that should tell us something about the problem,” she said. Gundu cited several instances of defendants dying in pre-trial detention under cash bails too high to post, and believes the Damon Allen Act has prevented mentally-ill defendants from getting the help they need.
“The problem is that we are trying to address a public health crisis with punitive solutions,” she said. “We are gonna keep digging ourselves into the hole more and more and more and if you’re serious about public safety, we should be connecting people with mental illness who come in the first few times through the jail — we should be aggressively connecting them with the appropriate level of care in the community.”
‘They are presumed to be innocent’
Defense attorney Charlie Baird also has concerns about Proposition 3 — specifically with taking away judicial discretion. In his long career, Baird has also served as a district judge and a judge on the Criminal Court of Appeals — the highest criminal court in Texas.
“This can be a very broad impact on an individual’s freedom prior to trial, when they are presumed to be innocent,” Baird said. “Under those circumstances, it seems like it should be very difficult to hold somebody without bail, so I’m concerned about that.”
Baird said one of the issues with pre-trial detention is the potential to coerce defendants into false confessions.
“Unfortunately there are many, many cases where individuals have lost their liberty and set in jail — presumptively innocent — but bail was either denied or bail was so high it was effectively denied,” Baird said. “What happens then is it forces the individual to plead guilty in order to get out of jail to support himself and support his family and to support his dependents. I’ve always thought that was a very unfair situation to put somebody in.”
At the same time, Baird understands the arguments about public safety.
“If you have an individual who is now charged with a violent offense and then you look at his prior criminal history and his prior criminal history also indicates violent offenses, then I think it’s very likely that that individual probably would be a threat to public safety,” he said. “Therefore, his bail should either be denied or very high.”
However, Baird would like to see judges have the leeway to make the best decision for the individual circumstances in each case.
“There’s lots of things that a judge can do in addition to just setting a dollar amount of bail,” he says. “We have all kinds of electronic devices that can monitor an individual either from their location or their alcohol intake. All types of things are available to us. We can also order counseling and treatment and therapy that you cannot provide an individual while they’re in jail. I think that I would like to see a judge have as much discretion as possible to impose those other conditions of bond that the judge thinks would be effective and also reduce the flight risk and provide for public safety.”
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