Bail-reform blues: Can't please all parties when reforming pretrial-detention process

Governor Greg Abbott's endorsement of bail reform last year appeared to give the issue fresh life. But Abbott has now backed a bail-reform bill that eschews best practices and instead puts his office at the center of future decisions about pretrial reform.

The Houston Chronicle editorial board rightly opined that the move puts legislative reform efforts at extreme risk, but it's hardly just the governor. There's a swirl of backroom drama surrounding this topic with an array of competing interests and agendas, and no obvious way to navigate the morass. Here's an overview of interests framing the topic:

• Federal court injunctions have mainly focused on representation of indigent defendants at bail hearings and eliminating discrimination based on ability to pay.
• Counties oppose requiring appointment of counsel for indigent defendants earlier in the process, considering this an "unfunded mandate."
• The Texas Judicial Council proposed using risk assessments to reduce incarceration of low-risk offenders (the Office of Court Administration developed an instrument based on work by the Laura and John Arnold Foundation to create a version counties could use for free).
• The bail industry opposes use of risk assessments with the heat of a thousand suns and is investing big money in lobbying and communications strategies to undermine bail reform efforts.
• After the death of a state trooper named Damon Allen, Governor Abbott weighed in to say his biggest priority was expanding the scope of preventive detention.
• The criminal defense bar adamantly opposes granting any additional preventive detention powers to the government.
• Criminal-justice reformers are split. In theory, all support reduced pretrial incarceration in county jails, but some oppose the use of risk-assessment algorithms which are viewed as racially biased.

The Governor's proposal criticized by the Chronicle focuses primarily on preventive detention and expanding the power of his office over local court processes. The federal litigation driving the issue is more focused on access to counsel at bail hearings and reducing unjustified pretrial detention. Meanwhile, the Whitmire/Murr legislation ignores the access to counsel issue and promotes risk assessments and preventive detention, trying to merge the Governor's priorities with the judiciary's.

Never say never, but it's hard to see the path toward threading that needle. And if it were to occur, the resulting bill likely wouldn't resolve the issues at stake in the federal litigation, and we'd be back doing this again in 2021. After the federal litigation has finished, it will be much more clear what needs to be in the bill to ensure counties meet baseline constitutional standards, since they will have been outlined by the 5th Circuit.

In the end, the will may not yet exist to solve the problem through the political process. Certainly there is no consensus regarding what reform should look like and who should control it.

But much could change between now and 2021. If the Lege fails to act this year, odds are federal litigation presently pending in the 5th Circuit will reach its denouement between now and the next time they meet. That will create a new baseline for pretrial-detention rules and give the Legislature much more guidance, and possibly different priorities.

So look for the Texas Lege to revisit bail reform in 2021, whether or not a bill passes this time.