Austin at Large: Get Out of Jail, Free

In the purple light of a new Texas, cash bail looks mighty ugly

Austin at Large: Get Out of Jail, Free

Last August a woman named Debora Lyons hanged herself with a bedsheet in a common area at the Harris County Jail in Houston. She had already threatened suicide at least once since being brought in on a theft charge days earlier. Her bail was set at $1,500. She couldn't afford it. Just last week, Tracy Whited, detained on a misdemeanor criminal mischief charge, ended her life the same way in the same building at the same jail. Her bail had been set at $3,000. She couldn't afford it either.

Let's just start out by calling this not just unfortunate, but immoral, and totally unnecessary, and not even that unlikely. Just in that one jail, there were (as of Dec. 1) well over 6,000 people in pretrial lockup; statewide, more than 40,000. (In Travis County, about 1,700.) Studies typically show that two-thirds of pretrial inmates were arrested for nonviolent offenses; more than 5,000 of those Texans were (are) awaiting trial on misdemeanor charges. The likelihood they pose a flight risk, or a danger to others, or to themselves, is quite small.

If you can afford even a fraction of your bail amount, or have enough social capital to avoid cash bail entirely, you'll be out within hours, costing taxpayers less than a dollar a day to keep an eye on you, or about 1% of the cost of keeping you in county jail. That's why not just left-leaning voices for justice but also fiscal conservatives are on board with eliminating wealth-based detention as part of the cross-party campaign to reform criminal justice in America. (Some conservatives have also, literally, come to Jesus, who had something to say on this subject.)

Three years ago, justice advocates and lawyers brought suit in Houston federal court to overturn cash bail for misdemeanors in the nation's third-largest county, part of the same legal effort that resulted in California's abolition of money bail statewide last fall. This month, they effectively won, and then – as an observance of MLK Day – this past weekend filed a similar action to target felony arrests. It's not just that they won, but how they won, that bears some further study.

Elections Have Consequences

It was actually way back in April 2017 that the Houston plaintiffs secured an injunction, but that was appealed by Harris County – at the behest of 14 of the county's 16 court-at-law judges who hear misdemeanor cases. (The sheriff, who actually runs the jail, was named as a defendant even though he agreed with the plaintiffs, as did the district attorney and most of the Commissioners Court.) Because they were Tuff-on-Krime, and also because they were Republicans, the judges spent $9 million fighting bail reform ... until they all lost, every last one of them, in last year's midterms, as did scores of other GOP judges throughout urban Texas. And that was that.

When we talked back in November about turning Texas blue inch by f*cking inch, this is what we meant. Now, it remains to be seen how the new wave of leftist judges, some of whom are Socialists and Strong Women of Color, will vibe with the rightist reformers who have started to breach the walls of the prison-industrial complex. For example, a popular bridging step away from cash bail has been the adoption of risk-assessment algorithms that, in principle, render more sensitive and just outcomes than does just locking up poor people. That's what California did, and the Houston-based, GOP-friendly Laura and John Arnold Foundation (also big on school choice and pension reform) has designed one of the most-used tools, called the PSA. However, justice advocates have come down firmly against algorithmic approaches that can and do perpetuate socioeconomic and racial disparities.

It Can't Happen Here?

It also remains to be seen how this tide will wash up on the sands of Travis County, which hasn't elected a GOP judge since Jurassic times and has for years touted its progressive approaches to pretrial diversion, restorative justice, etc. However, Austin is not as woke as we like to think. On a per capita basis, our jail is just as full-up with pretrial detainees as Houston's (the local incarceration rate is worse in rural counties), and justice advocates have pushed back on, for example, building more women's beds at the Travis County Jail. Some of our local criminal district and court-at-law judges may feel a draft blowing from their left when the 2020 primary filing period opens at year's end.

At the same time, the center-right of the Central Texas cultural spectrum can be transfixed by the tragic tales of terrible crimes committed by bail jumpers, as local judges are forced to make snap decisions informed by little but their own compassion, experience, or common sense. The Statesman and KXAN have both ridden that "investigative" train, met at the station by legislators – or, last fall, Greg Abbott himself – offering new laws, bearing the names of sad victims, to address extremely rare cases that might could be avoided if we redirected toward genuine public safety the time, money, and energy we currently spend locking up harmless poor people. At least we can actually have these conversations now, hard to imagine even a decade ago, in the purple light of today's Texas.

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criminal justice reform, cash bail, money bail, Harris County, Laura and John Arnold Foundation, PSA

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