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Criminal Justice & Government Reform: Bail Reform

TCCRI's recently published Criminal Justice & Government Reform Task Force Report explored the topic of Bail Reform. What follows is an excerpt from the Report on that topic.


The Eighth Amendment to the U.S. Constitution states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This language, however, does not grant a defendant an absolute right to bail. The Bail Reform Act of 1984, a federal statute that applies to federal court proceedings, permits denial of bail if a court finds that no conditions of release can reasonably assure (1) that the defendant will appear for trial, and (2) the safety of the community. The U.S. Supreme Court upheld the constitutionality of the Bail Reform Act in United States v. Salerno, 481 U.S. 739 (1987).

The Texas Constitution further narrows the circumstances in which bail can be denied. A defendant in Texas may not be released on bail if he is accused of a capital crime and the “proof is evident.” (The only capital crime in Texas is capital murder, which is a subset of murders where particular aggravating circumstances exist, such as when the victim was a young child). In addition, a court has discretion to deny bail if the defendant is accused of:

  • A felony, and the defendant has been convicted of felonies on two prior occasions. Both the commission of, and conviction for, the first felony must precede the commission of, and conviction for, the second felony;

  • A felony, alleged to have been committed while on bail for a prior felony for which the defendant has been indicted;

  • A felony involving the use of a deadly weapon, and the defendant has been convicted of a prior felony; or

  • A violent or sexual offense committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony.


The question of whether bail should be denied must balance two competing interests. On the one hand, giving the government the power to jail people without a trial invites government overreach and presents a grave threat to an individual’s liberty. Politically motivated prosecutions, or prosecutions originating from an unethical prosecutor’s feelings towards the defendant, are always possible. A prosecutor can exert enormous leverage over an innocent person who faces the prospect of being jailed for months before a trial and all the resulting disadvantages, such as separation from family and friends, reputational damage, and job loss. Suffering punishment from the state without a trial is in great tension with the presumption of innocence to which all defendants are entitled.

On the other hand, there are clearly defendants who would pose a serious threat to the community if they were released while criminal charges against them are pending. And while there is a presumption of innocence for defendants facing trial, arrest in Texas requires probable cause. Thus, a person facing trial in Texas very likely faces at least some credible evidence against him. Releasing on bail a defendant facing a charge of attempted murder or sexual abuse of a child makes it possible for a defendant who in fact committed the alleged crime(s) to re-offend. If a person credibly accused of a serious crime is released on bail and goes on to re-offend while out on bail, public anger and loss of faith in the justice system are natural results.


It must be emphasized that SB 6 does not condemn accused persons to jail before trial. While it is true that persons accused of certain violent or sexual offenses cannot be released on personal bond, they can still be released on bail. Moreover, indigent defendants have the right to petition the court to lower the bail amount.


The available data suggests that most defendants who are confined to jail pre-trial are accused of felonies- that is, particularly serious crimes. As of December 2021, approximately 64 percent of the monthly county jail population- which over the last decade has averaged roughly 65,000 people - were awaiting trial on felony (56.2 percent) or state jail felony (8.3 percent) charges, compared to about 7 percent for misdemeanors.v Being confined to jail pre-trial indicates that these defendants either could not afford to make bail or, less likely, were denied bail pursuant to the Texas constitution. The state should certainly scrutinize bail procedures for people accused of misdemeanors to ensure that bail is not effectively punishing people who have not received a trial and are not a threat to public safety. But that should be done with the acknowledgement that, in any given month, people confined to jail pre-trial are primarily accused of serious crimes.

The 88th Legislature should again attempt to adopt a resolution substantively similar to SJR 3. Rather than using bail as a roundabout means of detaining defendants who are perceived to be ongoing threats to society, the state would be better off simply authorizing the denial of bail to these defendants. This change in law would offer two benefits: first, it would strengthen public trust in the criminal justice system by ensuring that wealthy defendants are not treated more favorably that poor defendants. Second, permitting outright denial of bail would ensure that people who are a clear danger to society but have financial means do not have the opportunity to bail out.

Policy Recommendation: Pass a Constitutional Amendment Authorizing the Denial of Bail to Defendants Accused of the Most Serious Crimes and Who Pose a Threat to the Public.

The Legislature should adopt a joint resolution authorizing the denial of bail to defendants accused of violent and/or sexual offences who pose a threat to the community or a flight risk.

You can read this section in its entirety and the rest of the report here.


Note that citations have been removed from this post but are present in the full report linked above.


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