Needed: Real bail reform in Texas

May 7, 2019 GMT

As a former criminal prosecutor in Texas, I realized long ago the cash bail system in the Lone Star State simply does not serve justice. Unfortunately, instead of fixing the system, lawmakers introduced House Bill 2020, which would make the already-broken cash bail system even worse.

In the U.S. Army, I led rescue missions into Iraqi torture camps because I wanted to help uphold the ideals of justice for my country. The same spirit led me to become a civilian prosecutor for the federal government and locally in Georgia, Texas and Colorado.

Unlike the federal and military justice systems, the system for civilians in Texas (and most other states) hinges on money. Plain and simple, if you are wealthy, you can buy your way out of jail on bail while you’re waiting for your case to be heard. If you are struggling financially — even if you are unlikely to commit another crime or flee — you will probably sit in jail for weeks or months awaiting trial.


Whether you are free or behind bars while you await your case is very important. Since our justice system is clogged with low-level cases, people often spend more time in jail simply waiting for trial than they would realistically spend serving their sentence if found guilty. As a result, many people without resources plead guilty just to get home to their families and avoid losing their job or even custody of their children.

In addition, if you’re free in the weeks before your case is heard, you can begin counseling, education, employment or treatment — all of which help your case by showing you’re taking responsibility to get on a better path. If you’re sitting in jail, you lose that opportunity.

We all lose when our jails are filled with people who pose little public safety risk simply because they cannot afford bail. Overcrowded jails are a nightmare for taxpayers, who have to pay to warehouse people who should be at home and working. High pretrial jail populations are also a nightmare for deputy sheriffs and corrections officers who have to shoulder this extra workload and risk, especially since many jails are crowded far beyond their capacity.

When we incarcerate people in poverty, we are also setting up their kids for failure. Research shows that having an incarcerated parent puts children at higher risk of committing crimes, becoming a victim of abuse, developing mental health issues and giving up on school.

Harris County, among others, has already sought to address jail overcrowding and reduce the damage of wealth-based incarceration by automatically releasing some people charged with minor crimes until their trial. HB 2020 would take away their local authority to make these professional judgments about what works best for their communities.


The bill would also require risk assessments to determine how much money is required for bail, keeping the system reliant on cash. Higher-risk people who are wealthy would still be able to simply pay for their freedom, while lower-risk people would still be detained just because they don’t have a few hundred dollars. Risk assessments, while useful tools, also have to be very carefully calibrated to ensure that systemic racism is not accidentally and unknowingly built into their formulas.

The bill would also bar many justices of the peace in Texas from assisting district and county court-at-law judges in setting bail. By slashing the number of people who can set bail, the bill will increase the backlog of cases, forcing more people to wait in jail longer at taxpayer expense.

In short, I believe that Texas needs a smart legislative solution to the bail issue, but House Bill 2020 is not that solution. HB 2020 would tie the hands of our counties and judges who recognize the problem and are trying to develop local solutions. It would make our system more expensive, less effective and less efficient, and it would fail to serve justice while punishing taxpayers. Texas lawmakers should reject this bill and instead support legislation that would base the pretrial system on public safety, not access to cash.

Jake Lilly is an Army veteran of the Iraq War and a former Tarrant County assistant district attorney. He is a speaker for the Law Enforcement Action Partnership, a nonprofit group of prosecutors, judges, police and other law enforcement officials working to improve the criminal justice system.