Gov. Abbott’s bail proposals would make communities less safe, drain taxpayer dollars, and worsen racial disparities

The proposals before the Texas legislature would dramatically increase the state's already bloated jail populations.

by Sarah Staudt, May 14, 2025

This week in Texas, Governor Greg Abbott and conservative lawmakers are trying to change the state constitution to enshrine the worst features of the current bail system. These proposals, if passed and then approved by voters, would cause a rise in Texas’ already bloated jail populations. As a result, more people will be detained in private prisons out of state, taxpayers will be saddled with huge expenditures, and public safety and public health will get worse.

Disturbingly, proponents of these measures are calling them “bail reform” when in fact they are the exact opposite. “Bail reform” generally refers to the effective policies enacted around the country to make bail processes fairer and to reduce pretrial jail populations. A system of wealth-based detention that determines who should be in jail based on how much money they have in their bank accounts is an illogical and ineffective policy. Efforts to change or eliminate these money bail systems in Illinois, New Jersey, and elsewhere have been highly successful, have not led to rises in crime, and have saved communities countless millions of dollars in bail payments.

Texas conservatives are proposing to do the opposite. The proposals would make it mandatory in many cases for judges to hold people until their trials without bail, and in other cases would require the use of monetary bail in situations where people are currently being released without needing to pay any money. It is vital that Texas legislators and voters oppose these regressive policies, and that activists around the country understand the negative impacts of these kinds of changes to bail systems.

Overusing pretrial jailing undermines fairness and harms public safety and public health

Decades of research shows that growing the pretrial jail population is a mistake that will harm the justice system, public safety, and public health. There is ample evidence that lower jail populations do not harm public safety. Moreover, the overuse of pretrial jailing destabilizes both the individuals who are incarcerated and their communities, stoking the root causes of crime and harming public safety in the long run.

Individuals in custody are affected in a variety of negative ways by pretrial jailing. People incarcerated pretrial are more likely to:

• lose their jobs and experience housing instability;
• commit suicide, and are more likely to overdose after release;
• become re-involved in the criminal legal system in the future, as measured by long-term re-arrest rates;
• fail to appear in court;
• be convicted and be sentenced to longer jail and prison terms, worsening prison overcrowding and mass incarceration as a whole.

Overuse of pretrial jailing also harms the fairness of the criminal legal system as a whole by worsening racial disparities and disproportionately impacting women. People in poverty and Black and brown people are less likely to be able to afford bail, and bails are set at higher rates for Black and Latino people. Women are also less likely to be able to afford monetary bail when it is set (even though bail is set at lower amounts for them). Black people are less likely to be released on their own recognizance and more likely to be detained without bail. Texas already imprisons Black people in jails at disproportionate rates, and expanding pretrial jailing is likely to worsen that problem.

A deeper dive into the regressive bail package

The package of regressive measures being pushed in the Texas legislature consists of three parts (known as SJR 5, SB 9 and HB 75, and SJR 1). The exact language of these measures has been changing daily, but the core problems of each provision remain the same.

SJR 5 expands no-bail jailing without due process

SJR 5 would change the Texas constitution to allow detention without monetary bail for a wide variety of charges. The United States Supreme Court has been clear for decades that detention before trial, particularly without bail, should be a “carefully limited exception.” The federal government and states that have reduced or eliminated monetary bail, like Illinois and New Jersey, have tried to ensure that no-bail detention is “carefully limited” by restricting the charges for which it can be used and enshrining important due process protections in the law. However, Texas’ recent proposals would expand jailing without these careful limitations.

Although the exact provisions of SJR 5 are changing almost daily, many of the drafts have lacked key due process protections. It is vital that any version of SJR 5 that advances includes basic provisions that ensure that detention decisions are fairly made and that jail is only used as a last resort. Some of those key provisions would include:

• Limiting the availability of no-bail detention only to serious, violent cases, rather than allowing it in broader categories of charges;
• Ensuring that everyone who may be jailed without bail has access to counsel.
• Ensuring that prosecutors be held to a high standard of proof that a person will pose a danger to others — “clear and convincing” evidence, rather than simply a “preponderance” of evidence.
• Requiring that detention based solely on risk of fleeing the jurisdiction hinges on whether someone is likely to willfully flee prosecution. If no-bail detention is allowed based solely on whether someone is likely not to appear in court through no fault of their own, it will increase the unnecessary detention of poor and unhoused people, who sometimes struggle to find transportation and other resources necessary to appear for their court dates.
• Requiring that jail only be used if there is no less restrictive set of conditions that could protect the public. No-bail jailing should always be a last resort, and should only be used if there are no other alternatives.

Without these key due process protections, increasing no-bail detention is likely to lead to more people being held in jail longer, increasing jail populations without improving public safety.

SB 9 and HB 75 entrench the use of monetary bail

While SJR 5 seeks to increase the number of people held without bail, SB 9 and HB 75 seek to use monetary bail even more often than it’s currently being used. These bills would undo progress that has been made in reducing the use of monetary bail in Texas localities like Harris County.

SB 9 and HB 75 would require the use of money bail in many cases, including misdemeanors. Currently, people are often released on these charges without having to pay money. A particularly disturbing set of cases included in SB 9 and HB 75 are so-called “terroristic threat” cases. Although these charges sound very serious, they actually include any threat to people or property that causes an official or volunteer emergency agency to respond. This can include misdemeanors that often are charged against school-aged children because of social media posts. Including these non-violent charges in the set of charges where money bail will be required will do nothing to improve public safety — but it will ensure that poorer accused people are stuck in jail more often.

These bills also create procedural barriers that will prevent people from being released pretrial in a timely fashion. As we have noted, even one day in jail can lead to a range of negative outcomes. First, the proposals restrict the ability of magistrates and law hearing officers to set bail, and these kinds of decision makers play a key role in how large municipalities make bail decisions quickly. Second, it allows prosecutors to unilaterally prolong detention even when a judge intended to set an affordable bail. Prosecutors would be allowed to appeal these decisions, claiming that bail was set too low, and strand people in custody while the appeal is pending.

SJR 1 targets immigrants with mandatory jailing

The last provision in this regressive bail package combines the harms of the immigration system with the harms of the criminal legal system, requiring no bail detention for a group of people the proposal refers to as “illegal aliens.” The definition of “illegal aliens” has changed in various drafts of the proposal, but includes DACA recipients (so-called “dreamers” who entered the United States as children) and asylum seekers. Because criminal legal system statistics are not broken up by immigration status, it is impossible to estimate how many people this will affect, but it will certainly have a disproportionate impact on Texas’ Latino residents.

Because the proposal requires detention even in non-violent cases, judges will be barred from considering individual facts and circumstances. As a result, they will end up detaining people who do not pose a threat to anyone or who are charged with weak cases that are unlikely to lead to a conviction. Even when a judge decides that a person can be safely released to await trial in the community, the law will overrule that judgment and require them to send the accused person to jail. In other words, the measure ties the hands of the very people who are entrusted with the responsibility of ensuring that the criminal legal system is administered fairly. Judges hearing individual cases — not legislators in Austin — should make these decisions.

SJR 1 would also unnecessarily burden Texas taxpayers and local governments with the cost of incarcerating undocumented people who, under current law, would instead be detained by the federal government. Under federal law, many undocumented people charged with a wide variety of crimes are already required to be held in immigration detention. By requiring no-bail detention in their criminal cases as well, SJR 1 shifts the burdens and costs of incarcerating those people from the federal government to local jails — all without providing any additional funding to localities to absorb these costs.

Regressive bail policies will worsen Texas’ already out-of-control pretrial jailing crisis

Texas cannot afford to adopt these regressive policies. The state is already well above the national average for incarceration rates overall, and its pretrial jail population has been rising steadily for decades. This creates a serious overcrowding problem in Texas jails; 41% of Texas counties already send incarcerated people to other counties or states while awaiting trial. Harris County alone spends more than $50 million per year on out-of-state jail contracts. These expensive arrangements are often made with private prison companies, costing Texas taxpayers more money while enriching private corporations. To be clear, this problem cannot be solved by building bigger jail facilities — in most cases, it is a lack of staff, not a lack of bed space, that leads counties to outsource pretrial incarceration.

Expanding pretrial jailing will also cost lives. Deaths in jails are on the rise across Texas, and the situation is worsened when people are sent out of state, since those facilities do not have to follow standards set by the Texas Commission on Jail Standards, nor do they have to follow death reporting and investigation rules.

Lawmakers are voting on these proposals in the next few days, and there are real opportunities to stop them from moving forward, or to push for important revisions that strengthen due process protections. There will also be an opportunity for Texans to voice their opposition to SJR 5 and SJR 1 at the polls if they do advance past the legislature. Texas deserves true reform measures that seek to reduce harmful pretrial jailing, rather than so-called “tough-on-crime,” anti-immigrant measures masquerading as “bail reform”.