Should prosecutors and judges have expanded powers to delay or stop accused offenders from getting out on bail while awaiting trial? Should undocumented immigrants automatically be denied bail if they are accused of certain crimes?
Strong opinions exist on both sides of the bail reform debate, but the matter won’t be decided by the Texas Legislature. It’s expected to go before voters in November.
Houston Republican Sen. Joan Huffman’s package of three bail reform bills would essentially make it easier to hold those accused of “serious” crimes without bond while they’re awaiting trial. The package includes a bill that would keep undocumented persons in custody without bond if they are charged with a range of felonies including murder, aggravated kidnapping and sexual assault.
Texas currently uses a cash bail system that allows defendants to pay a bond while they wait for adjudication. Almost everyone has the right to be released on bail unless they’re charged with capital murder, certain repeat felonies or bail violations. But if they can’t afford it, they sit in jail, sometimes for years, even though they haven’t been found guilty. Some will never be found guilty and can wait months or years for their cases to be dismissed.
The bail amount is set by a judge, who can use discretion based on a defendant’s prior criminal history or the severity of the offense.
Huffman’s bail reform package widens the opportunity for discretion in denying bail, with one bill offering prosecutors the opportunity to prove the accused is a flight risk or a danger to society, an effort to keep dangerous people off the streets while they’re awaiting trial, the lawmaker has said. The package includes Senate Bill 9 and Senate Joint Resolutions 1 and 5. The joint resolutions that propose constitutional amendments must be approved by voters.
The bail reform bills recently cleared the Senate. Two of the three passed the House on Monday with overwhelming bipartisan support and a few amendments that the Senate must agree to. Officials said this week they are still working on the language of SJR 1, which passed with a simple majority and requires another House reading to make it to the ballot.
Rep. John Smithee, R-Amarillo, is carrying the bills in the House and called the package the most important legislation he’s ever voted on.
“It may not be perfect, but it’s the best we could do to fix a system that’s been broken for a long time,” Smithee said in a committee hearing. “We’ve been working on this for 10 years now, and it’s finally time to get this done.”
Huffman, a former prosecutor, has said that over the past four years, 162 people have been murdered in Harris County by defendants who were out on bond. Civil rights groups and some Democratic legislators have opposed Huffman’s proposals, which are among Gov. Greg Abbott’s priorities this session, alleging they’re discriminatory toward poor people and immigrants.
Being tough on crime is something many lawmakers campaign on but it also contributes to jail overcrowding and ignores mental health and substance use treatment programs as potential rehabilitation tools, opponents say.
“You can be tough on crime, on the crimes we should all be scared of: the aggravated robberies, the murders, the aggravated sexual assaults,” Harris County District Attorney Sean Teare said on the Houston Matters radio show in April. “Of course we want to be tough and remove those people from society. We also need to be smart on crime.
“We also need to recognize that someone who has a minimum of 25 years and is arrested for 1.2 grams of cocaine probably shouldn’t be in prison for the next 25 years and see what we can do to give them another opportunity to prove themselves,” Teare added.
The DA did not immediately respond this week to a request for comment on the bail reform bills but shared his support of one of Huffman’s proposals, Senate Joint Resolution 5, on social media.
SJR 5 proposes a constitutional amendment that would allow judges to deny bail to persons accused of “certain violent or sexual offenses or continuous human trafficking” if the prosecutor can prove that the person is a flight risk or danger to society.
Lone Star Left, a liberal newsletter operated by Michelle Davis, an “unapologetic progressive,” says the bill is “a massive expansion of state power that risks further bloating our jail system while chipping away at the presumption of innocence.”
Other Bail Reform Bills
Senate Bill 9 is touted by its authors as restricting who is eligible for release on cashless personal bonds and allowing the state to appeal bail decisions. Under this measure, a defendant can be jailed for up to 20 days while an appeal is litigated.
Lone Star Left says SB 9 “dramatically expands pretrial detention, giving prosecutors new powers to appeal bail decisions, blocks personal bonds for an exhaustive list of offenses, even for first-time defendants, and prohibits local magistrates in large counties from releasing people accused of certain crimes, reserving that power only for district judges.”
SB 9 does not require voter approval but its status is pending negotiations with the House.
Senate Joint Resolution 1, referred to as “Jocelyn’s Law,” is a constitutional amendment to automatically deny bail to undocumented immigrants accused of serious felonies.
The legislation was filed in response to the slaying of Jocelyn Nungaray, a Houston girl whose death became a driving force behind President Trump’s campaign against “migrant crime” last year. The men accused of murdering Nungaray are Venezuelan nationals who prosecutors say entered the country illegally. The Harris County District Attorney’s Office announced in December it would seek the death penalty against defendants Franklin Peña and Johan Jose Martinez-Rangel.
Opponents of SJR 1 say it is a racist stunt and a direct threat to recipients of the Deferred Action for Childhood Arrivals program and those with active applications for lawful presence in the United States.
“It strips judges of discretion and denies due process to an entire class of people based on immigration status alone, which violates the U.S. Constitution,” according to the Lone Star Left. “There will be lawsuits, no doubt.”
SJR 1 faced the most opposition in the House, not reaching the threshold of votes needed to clear the chamber. Smithee said he would propose an amendment to create more exemptions from the legislation’s automatic denial of bail, with the hopes that the resolution would earn enough Democratic support when the House tries again, according to the Texas Tribune.
Senate Bill 40, not technically included in the bail reform package, was also sponsored by Huffman and has been controversial despite bipartisan support. It bans cities and counties from using public funds to help nonprofits post bail for people in jail, meaning it “preemptively blocks local governments from supporting community bail funds, many of which exist to help low-income residents get out of jail while they await trial for minor, nonviolent offenses,” according to Lone Star Left.
Smithee said the donations aren’t a good use of taxpayer money. Rep. Gene Wu of Houston, Texas House Democratic Caucus chair and a former Harris County prosecutor, ultimately supported SB 40 because it brings balance to the current situation, but said the premise for the bill was based on “a lie” that Harris County nonprofits were misusing funds.
“People used fear-mongering and other things to drive this narrative,” Wu said. “But I think this bill has provisions in it that make it better for both sides and provide some safeguards in the future.”
Although the joint resolutions still must be decided by Texas voters, the proposals are viewed as a victory for Abbott, who has attempted to update state bail laws, particularly for large counties like Harris, during the last three legislative sessions.
“Too many judges grant repeat offenders two, three, even 16 chances that they do not deserve,” Abbott said in a statement. “State representatives must fix that by passing a constitutional amendment. Lawmakers must choose: support the safety of citizens they represent, or the criminals who kill them.”
