Texas lawmakers are trying to thwart charitable organizations that bail people out of jail. In July, the state Senate passed a bill that would prohibit such organizations from paying bail for certain defendants.
Bail allows defendants to remain free while they await trial. If the defendant abides by certain conditions of their release and shows up to court, then the bail money is returned to the payee. Defendants who can't pay bail have to stay in jail until their case concludes.
Charitable bail organizations like The Bail Project, the Community Bail Fund of North Texas, and Restoring Justice help those awaiting trial pay their cash bail, so they can get out of confinement without risking financial ruin. But if this Texas bill—S.B. 6—becomes law, these organizations would not be able to pay bail for defendants deemed to have committed "an offense involving violence" at any time in the past 10 years.
The rule would apply regardless of whether someone was currently jailed on suspicion of an offense involving violence.
It would include cases similar to Hervis Rogers', who was accused of voting illegally last month in Houston while he was still on parole for a burglary charge. Thankfully, the Bail Project stepped in to help him pay his $100,000 bail.
"Under this bill, because he has felony convictions in his past, a charitable bail organization couldn't help Mr. Rogers," State Rep. Joe Moody (D–El Paso) told NPR. "He didn't commit a crime of violence here. He unknowingly voted."
The bill's supporters say that limiting charitable organization's ability to pay bail is necessary to keeping Texas safe from repeat offenders.
"This is not going to lead to mass incarceration," alledged State Sen. Joan Huffman (R-Houston). "Instead, it should keep those who need to be in jail, in jail, so that our citizens can go about their everyday activities on the streets of Texas."
But according to Jonathan Blanks, a criminal justice writer at Clause 40 Foundation and Reason contributor, the data shows that having cash bail doesn't make the streets considerably safer.
"Earlier this year, I saw a report in Austin that showed five people released on bond over a three-year period were alleged to have committed homicide," Blanks says. "Opponents of bail reform will often point to cases like these as a public safety reason to keep people in jail before they are convicted of any crime. And while each of those homicides are tragedies, those five individuals were out of an estimated 65,000 on bond, which is .00769% of those released. Treating tens of thousands of people like potential murderers is anathema to the presumption of innocence and the American conception of justice."
"National research shows that people who are released without paying money bonds show up to court and stay arrest-free at the same rate as those who are forced to pay cash bail," The Bail Project said last March at hearing for a similar bill—which stalled in the legislature after Texas Democrats fled the state to protest a Republican voting measure.
The latest bill would not apply to religious organizations or organizations that pay bail for less than three defendants in a 180-day period.
It would also still allow defendants to take out bail bonds, wherein private companies charge defendants or their families a percentage of the bail rate in order to provide the entire amount.
"For-profit bail bond companies take advantage of the urgency of detention to bind people to contracts that can mean debt and payments that last far longer than any court proceedings," noted the American Civil Liberties Union (ACLU) in a 2017 report. "Whereas bail posted directly with the court is returned to the family that posted it when charges are dropped, for-profit bail companies keep the premium they've collected—even when charges are dropped or an arrest is deemed wrongful—collecting millions from innocent people."
Gordon Cummings, President of the CantWait Foundation for criminal justice reform, criticized the bill for undermining American principles of justice. "A core tenet of our justice system is the presumption of innocence, and these bills assume that defendants are guilty," he tells Reason. "Why are we already punishing those who are simply suspected of committing crimes? We need to be vigilant and guard against such attacks on our justice system."
Many libertarians and criminal justice advocates are in favor of getting rid of cash bail entirely, or at least severely curtailing its use.
"This practice effectively punishes the poor who cannot afford even a couple of hundred dollars, let alone the many thousands that judges can set in certain cases," says Blanks. "Ideally, cash bail would only be used in cases that the defendant poses a high risk of flight from justice…but the vast majority of defendants aren't dangers to society. Pretrial release, then, should be the default in most cases because of our legal system's presumption of innocence. In reality, however, many thousands of people around the country are sitting in jail for weeks or months waiting for their cases to be adjudicated because they are too poor to post bail."
Cummings notes the disproportionate effects that cash bail has on minority communities. "Black people account for approximately 13 percent of the U.S. population but comprise 36 percent of persons arrested for non-fatal violent crime. How many of those arrested are innocent?" he asks. "There are plenty of cautionary tales but the one that jumps out is Kalief Browder, a young Black man accused of committing a crime. He refused to plead guilty. He and his family couldn't afford bail (another travesty of justice), so he spent three years in Rikers Island. The damage that was done to him was so great that, after being exonerated, he took his own life."
As Scott Shackford noted last week, internet music sensation Lil Nas X recently came out in favor of abolishing cash bail. He writes as a part of his campaign with The Bail Project that "ending cash bail is one of the most important civil rights issues of our time."
Forcing defendants to pay their own cash bail or be jailed until trial is neither just nor effective. Charitable bail organizations are vital to helping defendants in this position. In prohibiting charitable organizations from helping, Texas would be making what is already a bad situation worse.