Texas lawmakers are expected to look at a range of criminal justice issues during the 2019 legislative session. Criminal justice reforms have been a bipartisan bright spot for a decade in Austin, as conservative and liberal lawmakers have sought to reduce the number of people behind bars, increase public safety and cut costs.
Here’s a look at some issues lawmakers are expected to take up during the 140-day legislative session.
Advocates say the bail system in Texas is broken. Tens of thousands of people are stuck in Texas jails on any given day not because they’re a risk to public safety, but because they can’t come up with the cash to make bail or pay a bail bondsman to get them out.
Now, the governor, the state’s two top judges, and legislative leaders across the political spectrum say they’ll prioritize re-jiggering the way pretrial detention works in Texas in order to better identify people who pose potential risks to public safety – who should be kept in jail – and make sure jails aren’t holding people unnecessarily.
“We just need to have a better product that looks at risk than just whether somebody has $500 in their pocket,” says Derek Cohen, director of the Center for Effective Justice at the Texas Public Policy Foundation.
In the 1980s, most people in jail were there because they’d been convicted of a crime – it was punishment. That’s not true anymore. Today, three out of four inmates in Texas county jails have been arrested but not yet convicted of a crime, many because they don’t have the cash to get out. That costs Texas taxpayers about a billion dollars a year and has led to lawsuits in Harris and Dallas counties.
“People lose their jobs, their housing and even their families,” says Nick Hudson, a criminal justice policy analyst at the ACLU. “And this happens so commonly that entire communities are impacted. Over-policed communities are drained of huge sums of money to bail payments, and none of this is necessary: There are more effective ways to get people to come back for their trials.”
Reforms will likely include more reliance on tools that use data and research to better predict whether someone is likely to not show up in court if they’re released, or to commit another crime while they’re out. These risk assessment tools look at things like at age, whether a person has absconded before, and prior criminal records, among other factors.
Some states like New Jersey and California have banned money bail entirely. Those examples have bail bondsmen across Texas readying to fight bail reform in Austin. But advocates say Texas isn’t likely to ban cash bail altogether.
Still, Mary Mergler from Texas Appleseed, a public interest justice group, says she wants the system to offer low-risk arrestees release without being requiring them to put up any cash.
“The legislature has the opportunity to create a pretrial justice system that both maximizes the safety of our community while also ensuring that all Texans, rich and poor, are treated fairly,” Mergler says.
In the last legislative session, a push to introduce better risk assessment and less reliance on cash bail in Texas passed the House but failed in the Senate. But observers think support for bail reform from Gov. Greg Abbott this year could be the key to legislative success. In August, Abbott announced his proposals with a focus on making sure people with violent criminal records aren’t likely to be released.
State jail reform
Another priority for both conservative and liberal criminal justice reform advocates is an overhaul of the state jail system. These 17 state-run facilities were set up in the early 1990s to as a middle tier of incarceration between state prisons and county jails intended to give a “mega-dose” of treatment and training to people who commit drug-related crimes, according to Derek Cohen from the Texas Public Policy Foundation.
“The problem is, we never actually funded the rehabilitation component, so we ended up making a system of short-term warehouses for offenders that either had persistent drug addiction or low-level felony offenses,” Cohen says.
Now, state jails have higher recidivism rates than either state prisons or county jails. More than half of those released from state jails in 2013 were convicted of another crime within three years.
“Taxpayers are spending around $165 million a year on state jails and basically throwing that money into a system that fails to address underlying causes of criminal behavior like substance abuse disorder,” says Nick Hudson from the ACLU. “We’re going to be looking to encourage and support expanded use of evidence-based approaches like mental health and substance use treatment.”
Since the '90s, more offenses have been added to the list of state jail felonies, including crimes that aren’t related to addiction. So reformers want to see both an increase in rehabilitative programs at state jails, and for lawmakers to take a careful look at what qualifies as a state jail felony.
Criminal justice costs
For Mary Mergler, who directs the criminal justice project at Texas Appleseed, a key priority is reducing the way that criminal justice costs make poor people more vulnerable. She says fees, fines and surcharges, if left unpaid, leave people subject to stiff penalties, including jail time.
“There are so many ways in which our criminal justice system punishes people for simply not having enough money and traps them in a cycle of debt and poverty,” Mergler says.
In the last legislative session, lawmakers passed legislation to curb the amount of people who are jailed for failure to pay criminal justice costs. It’s actually resulted in an increase in court revenues and has led to 300,000 fewer arrest warrants issued for failure to pay, as well as a drop in the number of people locked up for nonpayment of fines and fees. Still, in 2018, nearly half a million Texans spent time in jail to satisfy criminal justice debt.
A major area of concern, Mergler says, are programs that bar people from getting their license reinstated or renewed if they owe money to the state. Texas’ Driver Responsibility Program, the largest such program, adds additional fines for certain traffic-related offenses like speeding, driving without insurance and driving while intoxicated. The surcharge can add thousands of dollars to original fines and fees owed by an offender. And if someone fails to pay the fees on time or missing a court date, they can have their license suspended or have their license renewal blocked. That’s left 1.4 million people unable to obtain licenses.
And that’s just one program, Mergler says. “About three in four driver license holds and suspensions on Texas drivers are a direct result of the driver failing to pay fines, fees and surcharges and not the direct result of dangerous driving.”
The Driver Responsibility Program is also the subject of a class-action lawsuit from people unable to afford to pay the fees.
Still, Mergler acknowledges it’s complicated: The funds generated by the Driver Responsibility Program help hospitals pay for emergency trauma care around the state. Getting rid of the program means lawmakers need to replace that funding, or tell hospitals to find a way to fund the expensive care themselves.
Civil asset forfeiture
Last session, lawmakers from both parties pushed to rein in laws that allows police departments to seize property believed to be associated with crime, even when the owner hasn’t been convicted of a crime. While many in law enforcement view civil asset forfeiture as an essential tool to fight organized crime and drug trafficking, critics across the political spectrum say those agencies' use of seized cash and property to help fund their operations provides a perverse incentive to take assets.
While the reform efforts failed in 2017, the state’s Republican party platform calls for reforms to the system. Derek Cohen from the conservative Texas Public Policy Foundation says he thinks there’s room for moderate reforms to curb the practice without eliminating it entirely.
“I think we see the grassroots folks getting more and more agitated on this as the lack of action on this persists,” Cohen says.
Parents in prison
Texas, like a lot of states, is seeing a rise in the number of women behind bars. Four out of five women in Texas prisons are mothers. Many are the primary caretaker for their children.
That leaves some kids with no other option but the state’s beleaguered Child Protective Services program. Other children of incarcerated mothers, a Dallas Morning News investigation found, simply fall through the cracks. Minor children of people who are incarcerated also suffer a range of ill effects, according to Nick Hudson from the ACLU: increased rates of bevahioral problems, speech and language delays, asthma, obesity, anxiety and depression.
“We’re going to be asking that judges be required to consider the impact of incarceration on children and issue a written finding on whether the use of community alternatives is more appropriate on a case-by-case basis,” Hudson says.
Those alternatives could include parenting classes, drug and alcohol treatment, vocational and job training, and community service.