Rodney Ellis should thank Republicans for pro-safety bail reform
A miracle happened last month at Harris County Commissioners Court: Democrats and Republicans agreed on something related to criminal justice.
In a unanimous vote, the court called for the Bail Bond Board to enforce the 10 percent minimum for cash bail. This move is intended to prevent criminal defendants from skirting high bond requirements, which are set by judges in an attempt to protect public safety. Several bail bond companies were caught cutting deals and allowing defendants to pay extremely low deposits — 1 percent in some cases — for their freedom. This “freedom for sale” system subverts the decisions of judges and, unintentionally, exposes the problem of a public safety policy that relies on ability to pay.
Even as the bail board kicked the can on making this change, Commissioner Rodney Ellis, a Democrat, has aimed bigger and raised the idea of eliminating cash bail entirely. “Our bail system is broken,” he said, suggesting that Texas create a “system based on safety first.”
That’s a good idea, but Ellis should give credit where it’s due — to Republicans.
Even if election-year politics has some in the GOP shying away from the issue, Texas Republicans, and conservatives across the country, have spent years calling to replace our felony courts’ unconstitutional wealth-based pretrial system. Right now, Texans living in Democrat-run Harris County suffer under a felony pretrial system that not only puts community safety at risk, but also violates individual liberty. Poor and working-class residents can be detained while still legally innocent simply because they don’t have the money to post bail. Meanwhile, wealthy criminals can use their ill-gotten gains to buy their way out of jail before trial.
Take a recent example — the terrible vehicular attack in Waukesha, Wis., committed by a man who was out on a $1,000 cash bail after being charged with domestic battery. The county’s risk assessment returned a fairly high risk rating, but the court overlooked this red flag and thanks to a cash bail system, the accused murderer was able to pay his way to freedom. In an ideal world, dangerous people should be kept in custody no matter how much money they have. And people who pose no risk should not sit in jail when they could be working and taking care of their families.
That’s why bail reform has been a plank for conservative criminal justice reform.
In his recent remarks, Ellis specifically referenced New Jersey’s risk-based pretrial release system as a model. That state’s bail reform was approved under Republican Gov. Chris Christie, who, when challenged for his position, pointed out that the only losers under the new legislation were bail bonds agencies who “made a fortune over the years predominantly off of the poor.”
In contrast, my home state of New York, where I spent my career as a police officer for the NYPD, passed bail reform with little to no Republican input or support. Implementation lacked buy-in and made it difficult for police to do their duty to protect the public. New York’s experience with a well-intentioned but poorly executed bail reform has proven why it is critical for conservative voices in favor of smart-on-crime bail reform to be heard loud and clear.
Texas has plenty of those conservative voices.
Chief Justice of the Texas Supreme Court Nathan Hecht has been a longtime advocate of replacing our broken cash bail system with a constitutional risk assessment.
“We think that you ought to release people who are charged with offenses on their personal recognizance if they’re not a risk of flight or a threat to the victims or recidivism or anything like that,” he said in an interview with the National Partnership for Pretrial Justice.
Moreover, the O’Donnell consent decree that successfully brought bail reform to Harris County’s misdemeanor courts was overseen by a Republican-appointed federal judge after Democrats swept local races.
But pro-reform isn’t just the view from the top. The Republican grassroots have boldly endorsed conservative bail reform. In the 2020 party primary, 95 percent of Texas Republicans supported a proposition stating that bail “should be based only on a person’s danger to society and risk of flight, not that person’s ability to pay.”
That bail reform language is echoed in the Texas GOP’s 2020 platform.
You can also hear this conservative call for reform at the national level. Multiple conservative criminal justice experts, from the National Review to the R Street Institute, have argued that pretrial release should be based on an individual risk assessment, not a system of cash bail that ignores the community’s needs.U.S. Supreme Court Chief Justice William Rehnquist warned in a 1987 case that denying pre-trial release solely because a defendant can’t afford bail risked violating the U.S. Constitution, even as he led the court in upholding a federal statute that permitted especially dangerous defendants to be held without bail. “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception,” he wrote in U.S. v Salerno.
I’m glad that Texas Democrats are finally learning facts about our broken cash bail system that Republicans have known for years. Hopefully they’ll join their conservative colleagues in passing reform bills in the next legislative session that will make it easier to detain the truly dangerous, harder to infringe on the constitution’s preference of pretrial release and ensure that public safety matters more than bail bond industry profits.
Image: LMPark Photos
