That is The Marshall Mission’s Closing Argument publication, a weekly deep dive right into a key legal justice problem. Need this delivered to your inbox? Join future newsletters.
When most of downtown Houston has shut down for the night time, bail bond row remains to be conscious. A minimum of 10 surety companies dot the blocks surrounding the county courthouse complicated, many with buzzing neon lights and brilliant window paint promoting freedom from jail after arrest, bought on an installment plan.
It’s a distinctly American enterprise — one copied solely within the Philippines — and for a second, a decade in the past, there have been glints of its demise right here in Harris County, dwelling to Houston. A federal lawsuit filed in 2016 argued that the county’s misdemeanor bail system successfully jailed individuals for being poor, violating the Structure’s equal safety assure. The case, O’Donnell v. Harris County, produced a 2017 ruling that the Texas Tribune described then as “groundbreaking.” U.S. District Decide Lee Rosenthal agreed with the plaintiffs, discovering that the county “doesn’t present due course of” for poor defendants in detention “for his or her lack of ability to pay a secured monetary launch.”
Her resolution set Harris County on a path to a consent decree, giving a federal monitor oversight over reforms to take away wealth, or lack of it, as a foundation for being detained whereas awaiting trial for a misdemeanor. On the time — and with one other case difficult the county’s felony bail system on the horizon — bail bondsmen overtly mused concerning the impending dying of their trade.
Quick ahead to 2026, the place the politics round pretrial launch have swung within the different path. In Texas, and nationally, some political leaders commonly speak about “cashless bail” as a public security menace, together with President Donald Trump throughout Tuesday’s State of the Union deal with.
In Texas, that rhetoric has helped spur a state constitutional modification and a flurry of latest legal guidelines, together with Senate Invoice 9, signed in June of final yr. The bail bonds trade aggressively lobbied for the brand new regulation, which requires secured cash bail for sure misdemeanors, narrowing judges’ potential to launch individuals on a promise that they may return to court docket. Civil rights attorneys say that requirement places the brand new regulation on a collision course with the reforms that Harris County adopted underneath the O’Donnell consent decree.
“SB 9 conflicts with the consent decree within the sense that it requires the very constitutional violation that the consent decree was designed to treatment,” mentioned Travis Fife, a workers legal professional with the Texas Civil Rights Mission, a regulation agency that has been concerned in defending the consent decree.
In keeping with the impartial displays overseeing the decree, greater than 80% of misdemeanor arrestees are launched pretrial underneath the reforms, in contrast with lower than half a decade in the past. The variety of new offenses by individuals awaiting trial for misdemeanors has not elevated, the displays have mentioned. A 2024 meta-analysis by the Brennan Heart, a non-partisan, liberal-leaning legal justice assume tank, discovered no correlation between total violent crime charges and modifications to money bail.
Nonetheless, in November, a decide opened the door to Texas Lawyer Basic Ken Paxton’s effort to have the consent decree thrown out, partly primarily based on a possible battle with the brand new state regulation. Paxton has known as the consent decree illegal and has blamed “leftist judicial activists” for “throwing open the jail doorways and unleashing criminals again onto the streets.”
SB 9 is just one a part of a set of pretrial detention modifications the state enacted in 2025. A separate however associated poll measure that handed overwhelmingly in November, Proposition 3, permits judges to disclaim bail solely for individuals accused of sure high-level felonies, like homicide, human trafficking and aggravated sexual assault. This needed to be executed by modification as a result of the Texas Structure, like these in most states, beforehand assured a proper to bail in all circumstances apart from capital homicide.
Taken collectively, SB 9 and Proposition 3 illuminate a two-pronged effort to stiffen pretrial detention: They concurrently tighten the money-bail pathway for some offenses, whereas widening the menu of circumstances the place individuals might be held with out bail in any respect.
This isn’t only a Texas story. Throughout the nation, state legislatures are reaching for comparable instruments. Earlier this month, lawmakers in Tennessee teed up a 2026 poll measure that may broaden the classes of offenses for which bail might be denied. Simply days later, legislators in Indiana superior an modification that may enable judges to disclaim bail primarily based on a broad discovering of hazard to public security — language that critics warn might widen shortly in observe. Voters in each states will resolve on the measures in November.
However the brand new bail program in Texas is exclusive in a technique. When bail reform advocates realized the constitutional modification was more likely to go, they lobbied arduous, and secured numerous new due course of protections that weren’t beforehand a part of Texas’ bail issues, together with the proper to a lawyer at bail hearings, and establishing a better commonplace of proof earlier than bail might be denied.
“It raises the due course of flooring, but it surely additionally widens the online of who might be detained with out the chance to make bail,” wrote Emma Stammen, a coverage strategist on the Bail Mission, a nonprofit that advocates for much less restrictive bail coverage nationwide. “Whether or not this modification protects rights or simply packs the jails relies upon solely on how judges interpret it.”
It additionally will depend on the assets accessible. Fife, the civil rights lawyer, cautioned that these protections can change into paper rights in counties the place bail hearings are perfunctory and indigent protection methods lack the capability to workers them.
Whereas some bail reform advocates are searching for methods to maximise what they see as a silver lining in Texas’ new modification, “tough-on-crime” conservatives like Gov. Greg Abbott have declared a way more whole victory over the legislative push. “We handed a regulation and a constitutional modification that hold these criminals the place they belong, and that’s behind bars,” Abbott mentioned at an occasion final week with the household of Brian Lewis, a person who was killed in his entrance yard in Beaumont final summer time. The alleged shooter had been launched on bond following an earlier arrest for allegedly beating Lewis so severely that he spent months within the hospital.
Horrifying circumstances like this typically drive political pushes for harder pretrial insurance policies — uncommon, vivid tragedies that come to face in for a system that processes tens of hundreds of circumstances a yr. Critics argue that these tragedies can’t be the idea for constructing a system that treats accusation as guilt. State Rep. Joe Moody, an El Paso Democrat, warned final yr that computerized detention with out bail can lock individuals up for months or longer primarily based solely on an allegation. That, he advised the Houston Chronicle, is “flawed and immoral.”
