Who Killed Criminal Justice Reform in Texas?

In recent years, Rick Perry struggled mightily to live up to the expectations so many once placed on him. As Donald Trump’s Secretary of Energy, he made virtually no mark on the public consciousness. Hitting the trail during his pair of disappointing presidential campaigns, he sounded more often than not like an uninspiring small-town preacher. On one issue, though, he was occasionally able to conjure up some Old Testament grandeur. Perry often boasted about his role in downsizing the Texas prison system. When he became governor in 2000, the Texas prison population had quintupled over the previous twenty years—swelled by thousands of small-time drug offenders and others convicted of nonviolent crimes, who cost the state hundreds of millions of dollars a year to incarcerate with little clear benefit to public safety. Faced with this profligate use of tax dollars, Perry explained, he had had no choice but to speak truth to power. “Let my people go,” the governor said, like Moses to Pharaoh. Armed with this conviction, he signed dozens of bills that helped free the wrongfully convicted and kept nonviolent offenders from going to jail. The incarcerated population declined enough that Texas was able to close three prisons. The state’s reforms became a model for others, and justice rolled down like water.

As lawmakers were quick to point out, however, Perry was hardly parting the seas. Mostly, he managed not to stand in the way of bills passed by the Legislature. But even that was significant. While the rest of the country was still carrying on in the tradition of the tough-on-crime nineties, Texas stood apart. 

How times have changed. If Perry’s successor, Governor Greg Abbott, launches his own presidential run, he will do so while proudly proclaiming that, like Pharoah to Moses, he held his ground and said, “Not so fast.”

Abbott has joined a counterrevolution, allowing his antipathy toward Democratic officials to outweigh the effectiveness of policies embraced by much of his party. Take, for instance, his treatment of Dallas judge John Creuzot, who years earlier convinced Perry to support drug courts, which offer treatment rather than incarceration for low-level offenders. In 2018 Creuzot was elected Dallas County district attorney and soon announced that his office would no longer prosecute small-time drug offenses and other petty crimes that often involve the poor, mentally ill, and unhoused. He was quickly pilloried by Abbott and Attorney General Ken Paxton, who accused him of “abandon[ing] the rule of law.”

These days, the Legislature isn’t doing much reforming either. During recent sessions, proposed improvements to the criminal justice system have been blocked by powerful police lobbies and their supporters in state government. One of the most anticipated pieces of legislation this year would have barred police from arresting Texans for most Class C misdemeanors—including traffic violations, such as the one that prompted the confrontation that led to Sandra Bland being placed in the Waller County jail cell where she reportedly killed herself. 

A somewhat watered-down version of the bill passed the House during the regular session with the support of the Republican Speaker—the culmination of years of effort from disparate groups. But it never even received a hearing in the Senate, where Lieutenant Governor Dan Patrick has revived the law-and-order crusade of decades past. Its demise marked the third time in three sessions that a version of the bill has failed to pass.

Reformers have watched with a mixture of disbelief and dismay as the bipartisan consensus has crumbled. “This year it became evident that police reform of even the smallest sort cannot occur in Texas while Greg Abbott and Dan Patrick remain in office,” Austin writer Scott Henson recently noted on his criminal justice blog, Grits for Breakfast. 

And it’s not just on police reform that progress has stalled. During the special sessions he called this summer, Abbott pushed legislation intended to reverse some of the gains made in fixing Texas’s archaic bail system. For years, Texas cities, particularly Houston, have taken strides to reduce their reliance on cash bail, which ensures that many poor and mentally ill defendants arrested for comparatively minor crimes stay stuck in county jails for months. Bail reform is supported not just by criminal justice activists and Democratic local elected officials; Nathan Hecht, the Republican chief justice of the Supreme Court of Texas, has called for a complete overhaul of the way courts handle pretrial detention. But the bail bill pushed by state leaders aimed to strengthen the role cash bail plays.

Abbott and his allies are responding to a real issue, as well as a political opportunity. Rising rates of violent crime, especially in large cities, have prompted politicians of all stripes to offer solutions. For many, and particularly for conservatives, a well-worn playbook—more police, less tolerance toward even petty crimes—is an obvious answer. In addition, the racialized backlash to the Black Lives Matter protests of last year has made some Republicans skittish about criminal justice reform. Calls by some progressives to “defund” the police at a time when crime is rising have handed Republicans a winning campaign issue. 

Over the years, Scott Henson has tried studiously to steer clear of polarizing national issues, appealing instead to the bipartisan traditions that prevailed in the state Capitol before the arrival of Abbott and Patrick. In 2016 he cofounded Just Liberty, a nonprofit advocacy group with a board that’s half-Republican and half-Democrat, which tries to find areas of agreement among legislators. “Quite frankly, Just Liberty may have run its path,” he said when I met with him in early August. The group’s board was scheduled to meet and discuss whether the organization should disband. “It was based on the idea that bipartisan criminal justice reform is possible,” he said. “I’m not sure that’s true anymore.”

The bipartisan coalition that prevailed during Perry’s tenure as governor was a sort of happy accident. It helped that the spree-building of prisons in the nineties was foremost a project of Democrats, who were eager to counter the perception that they were “soft on crime.” Bill Clinton passed the 1994 crime bill that fueled mass incarceration; progressive hero Ann Richards oversaw a prison boom. That made it easier for Republicans to get on board with dismantling some of the incarceration machinery. (In fact, five prisons closed during Abbott’s early years as governor.) Libertarian-leaning members of the GOP allied themselves with conservative local elected officials who didn’t want to issue bonds for new jails. Then there were the prison ministers, who bore witness to fellow Christians about the grim reality of life behind bars.

As the years passed, the coalition gained institutional backing and intellectual heft. The Right on Crime project, under the auspices of the conservative Texas Public Policy Foundation, stressed to lawmakers how much money they could save taxpayers by reducing sentences and trying to fund addiction treatment instead of punishing drug users. For the most part, the conservatives found common cause with their liberal allies, who usually were more concerned with issues of racial and class equity than with fiscal prudence. The loose alliance was often just enough to keep the ball moving down the field. “If you can keep seventy-five percent of your Democrats and get forty percent of the Republicans, you can pass bills,” Henson says. But the unified front has frayed, even as polls show that a growing number of Texans believe that the criminal justice system is in need of significant change.

Many conservatives are wobbling because of larger political dynamics. Police reform went from a relatively sleepy matter to a supercharged issue intertwined with the culture wars. Republicans in Austin are peeved with the state’s big-city mayors, district attorneys, and county officials. These figures, mostly Democrats, now serve as the face of the reform movement, loudly declining to prosecute low-level offenses and attempting to hold police responsible for misconduct. The conservative news outlets and Facebook feeds that have amplified an endless stream of footage of protests and riots have made many viewers feel as if anarchy were descending on the country—and that the thin blue line needed to be strengthened, not “defunded.” 

The rising murder rates in most Texas cities during the pandemic haven’t helped the movement either. Violent crimes such as homicide and robbery are still less common than during much of the seventies, eighties, and nineties. But that doesn’t make much of a difference in public perception.

There’s another significant factor contributing to the backsliding. “This is a Trump thing,” Henson says. During his time in office, the former president—who, on the campaign trail, exploited fears of crime, especially when suspects were Black or Latino—promised to punish wrongdoers and maintain order in ways that Republicans had recently deemphasized. Henson says Trump’s approach rubbed off. Patrick and Abbott have started talking tougher. Speaker Dade Phelan, meanwhile, often talks like a reformer of the Perry era.

Those brief years may have been an aberration, rather than a fundamental shift in the state’s approach to criminal justice, Henson says. The post–Civil War era saw the introduction of a regime of forced labor designed to control freed slaves and others who were regarded as undesirable. During the sixties the Legislature responded to the civil rights movement by effectively trying to criminalize nonviolent protest. In the nineties, Ann Richards bragged that she had added 75,000 prison beds and “cut parole by two thirds.” 

And it’s easy to overstate how much progress Texas has made: Yes, the number of Texans who are incarcerated as a percentage of the state’s population continues to decrease. But according to the most recent figures, our incarceration rate ranks higher than that of all but five other U.S. states. 

Still, not everyone is as pessimistic as Henson. Marc Levin, the former Right on Crime policy director, thinks the sour national political climate could shift. “We’re kind of seeing the crime rate level off” in major cities, he says. (Though the murder rate has continued to climb, statisticians say the growth in the rate has slowed in the first six months of this year.) It’s possible, he says, that last year’s crime spike was caused in large part by the disruptions of the pandemic and that things will soon settle down.

Though Trump’s rhetoric was often harsh, he signed important reforms into law, notably the First Step Act, which reduced some draconian federal prison sentences and sought to improve conditions in federal lockups. Conservatives are now more willing to make substantial investments in the mental health-care system (such as updating the state’s aging psychiatric hospitals) and other alternatives to incarceration, Levin says. He believes that the elements of the criminal justice debate that seem to trigger right-leaning voters—“antifa” and “defunding” the police—may lose their power to terrify. By the time of the 2023 legislative session, he predicts, “maybe murders have started to decline again; maybe the whole ‘defunding’ talk is kind of seen as being in the past and not really that big a flash point. It would be a more conducive environment to advancing some of the police reforms.” 

And while the Legislature’s intransigence has been frustrating to reformers—a number of bills Levin worked on died unceremoniously in the Senate—there’s good work happening in many parts of the state, some of it led by elected Republicans, that will continue if state lawmakers can simply get out of the way. Even as fights between Abbott and urban Democrats such as Creuzot and Harris County district attorney Kim Ogg have grabbed headlines, the GOP has elected its own reformers. Republican Laura Nodolf, who became district attorney of Midland County in 2017, wrote in an op-ed that year that “warehousing nonviolent offenders is costly to Midlanders” and pledged to help those who “desire rehabilitation.”

For now, many lawmakers seem to be doing their best to turn back the clock. Consider the bail bill that Abbott cited as a top priority for the special legislative sessions. The ostensible reason for the legislation was to address the growing number of crimes committed by felons out on bail. Though it contained a few laudable provisions, such as a system to provide judges with better data on defendants, it also would have made it harder for indigent Texans to get out of jail while their cases are being heard. The bill would have cracked down on personal bonds, which allow defendants to be released without putting money up front, and restricted who can access “bail funds,” charitable organizations that help defendants make bail when they can’t afford it themselves.

It’s unlikely the bill would have done much to make Texans safer, but it almost certainly would have ensured that more poor Texans are kept in jail for longer. Judges are constitutionally required to set “reasonable” bail for all who are accused of a crime, except for those charged with capital murder. The proposal before the Legislature wouldn’t have changed that requirement. Anyone who could make cash bail would continue to be free to commit more crimes—as in the case of millionaire Robert Durst, who was jailed for killing a man in Galveston in 2001, paid his $300,000 bail, and illegally fled the state. Banning bail funds wouldn’t make Texans safer either—they mostly help poor defendants charged with relatively minor crimes, not hard-core criminals.

Most crucially, the proposal didn’t do anything to tackle one of the major reasons for the increase in murders committed by those out on bail: clogged courts. The pandemic has created a backlog of criminal cases, and many judges have been compelled to release defendants on bail while the system tries to catch up. In Houston, the local justice system never recovered from Hurricane Harvey in 2017. Nearly 100,000 criminal cases are pending in Harris County—up from 38,000 before the storm. 

As a result, many defendants later charged with homicide are spending a lot of time on the streets after posting bond for other crimes. The Houston Chronicle found that the number of days between when a defendant posted bond and when that person was charged with a homicide nearly doubled between 2015 and 2020, from 94 to 181. Over a similar period, the number of defendants who were charged with homicide while out on bond nearly quintupled. 

On the last day of August, the Legislature passed the governor’s preferred bail bill—after excising the clause that would place restrictions on bail funds. It wasn’t the worst possible outcome from the reformers’ point of view, but the Texas Civil Rights Project quickly denounced the bill (which Abbott was expected to sign) and may file a lawsuit to block its implementation. 

Still, the state has one more chance to try shoring up the justice system rather than just looking tough on crime. Texas is set to soon receive nearly $16 billion in federal COVID-19 relief funds. Some of that windfall could be allocated to address the court backlog by providing resources and staff for courts and funding pretrial diversion programs for nonviolent offenders. That would make things better for victims and defendants. And it would make financial sense for state and local governments that are overspending on jails and prisons.

In August, just as Abbott called the second special session, the board of Just Liberty met to decide whether to disband. For now, the group resolved to keep going. There’s still work to do.

This article originally appeared in the October 2021 issue of Texas Monthly with the headline “Who Killed Criminal Justice Reform?” Subscribe today.