Fred Harris was booked into the Harris County Jail on October 10, 2021. The intellectually disabled eighteen-year-old, who had an IQ of 62 and suffered from mental illness, had been arrested earlier that day after witnesses reported him walking down a busy street in Houston’s Montrose neighborhood and threatening someone with a knife. A magistrate set bail at $20,000—lower than the $75,000 requested by the prosecutor—because Harris had no criminal convictions and no known history of violence. But even the lower amount was too expensive for Harris’s family; with them unable to post bond, the young man would have to stay in jail until his case went to trial. 

On October 29, after spending nearly three weeks in the mental health wing of the jail, the five-foot-tall, 98-pound Harris was moved into a holding cell with 240-pound inmate Michael Paul Ownby, who was awaiting trial on domestic violence charges and had recently attacked a guard. Less than an hour later, Ownby stabbed Harris repeatedly with a sharpened utensil and smashed his head into the floor, according to eyewitness accounts. Harris was transported to Ben Taub Hospital but never regained consciousness; his mother took him off life support a few days later. (Ownby has been charged with murder. Harris’s family is suing the county and its sheriff’s department for failing to prevent Harris’s death.)

Harris was one of 21 inmates who died in the crowded, understaffed Harris County Jail in 2021. Last year, 28 died, the highest number in more than a decades, prompting a local activist to dub it the “House of Death.” According to the county, around 9,700 inmates are currently being held in the jail, a facility designed to hold 10,000. The jails in Dallas and San Antonio are also near capacity and understaffed, although they haven’t seen the same level of violence. Unlike state-run prisons, which hold convicted criminals, county jails are mostly filled with defendants awaiting trial. Pretrial detainees account for around three quarters of the jail populations in Houston and Dallas and, as of January, 85 percent of the population in San Antonio. These inmates are usually behind bars simply because, like Fred Harris, they can’t afford to bond out. According to the county’s online dashboard, around 80 percent of the Harris County Jail population is classified as suffering from at least one mental health issue. Because of the county’s backlog of criminal cases, the median jail stay is 103 days. 

But rather than working to improve jail conditions, the Texas Legislature is currently considering two measures that would likely exacerbate the crisis. Senate Joint Resolution 44, coauthored by Democrat Juan “Chuy” Hinojosa, of McAllen, and Republican Joan Huffman, of Houston, proposes to put a constitutional amendment on the November ballot that would allow judges to deny bail to defendants charged with certain violent offenses, including rape and human trafficking. (Under the Texas constitution, judges can currently deny bail only to those charged with capital murder and those who meet certain criteria for prior felony or violent-offense charges.) Senate Bill 1318, also coauthored by Hinojosa and Huffman, would prohibit judges from issuing personal (cash-free) bonds to those accused of a broader array of crimes. It would also give prosecutors more tools to keep defendants in jail before trial. If the amendment and bill become law, they could vastly increase the number of Texans in pretrial detention. 

Most Texas lawmakers seem to be just fine with that. Two years ago, the Legislature nearly adopted a similar proposed amendment, Senate Joint Resolution 3, which Governor Greg Abbott named as one of his priority items during the second special session. The resolution received near-unanimous support in the Senate, but in the House fell short of the two-thirds threshold required to put SJR 3 on a statewide ballot for voter approval. In the House, the bill’s opponents were all Democrats except for Republican representative Matt Schaefer, of Tyler. In January, the Republican-dominated Wisconsin Assembly put a similar constitutional amendment on the ballot; it will go to voters next month. 

The Texas amendment enjoys bipartisan support and appears to have a good chance of making it onto the ballot this November. During a March 7 hearing of the Senate Committee on Criminal Justice, Democratic senator and committee chair John Whitmire, of Houston, described as “outdated” the Texas constitution’s requirement that most defendants receive cash bail. “With the challenges we have in the criminal justice system . . . we should allow judges to deny bond after a hearing,” he declared. Huffman argued that “Texas lacks viable options for detaining our most habitual, violent felony offenders without bond. It has become starkly clear that our local officials making bond determinations day in and day out need this tool to protect the people of Texas from future harm.”  

The committee approved the amendment on a bipartisan vote of 6–0, with Democrat Borris Miles of Houston voting “present.” In a statement to Texas Monthly, Miles noted that “Texas has a history of individuals accusing people of color for crimes they did not commit, for which they are later found innocent. Denying bail to those only accused of a crime will disproportionately impact communities of color.” Yet when the bill came up for a vote in the full Senate on March 20, Miles joined 29 of his 31 colleagues in voting yes; he subsequently explained that, although he had concerns with the bill, bail reform was necessary “to ensure public safety.” The lone no vote came from Democratic senator Sarah Eckhardt, of Bastrop. The amendment will now go to the House. If it receives two-thirds of the vote there, voters will decide this fall whether to adopt the amendment. 

The backdrop to the current debate over bail policy is the recent national spike in violent crime. From 2019 to 2020, murders rose by 29 percent in the United States, the largest single-year increase in modern history, according to the FBI; they went up another 4 percent in 2021. In Harris County, the focus of much of the Senate hearing, the number of homicides rose by 60 percent from 2019 to 2021, according to Texas Department of Public Safety data, then declined 5 percent last year. Criminologists have proposed several explanations for the surge in 2020 and 2021, including COVID-19 pandemic–related frustrations, increased gun sales, and a general police pullback in the wake of the George Floyd protests. Many Texas politicians have blamed judges in Democrat-run cities like Houston and Dallas for their supposedly lenient bail practices. In his State of the State address in February, Abbott made bail reform an emergency item for the Lege, blaming “activist judges” for “using low bail to let dangerous criminals back on the streets.” Abbott repeatedly singled out Harris County, despite the fact that violent crime has gone up in both red and blue cities since 2019. “If this were some sort of local issue, the crime rate wouldn’t be rising nationally,” Harris County Judge Lina Hidalgo told Texas Monthly last April. 

The sensational coverage of violent crime by local TV news has helped create the impression that liberal judges are to blame. Houston’s Fox 26, for instance, features a recurring segment called “Breaking Bond,” created in collaboration with the nonprofit group Crime Stoppers of Houston, about felony defendants who are rearrested while out on bail. A frequent guest is Andy Kahan, the director of victim services for Crime Stoppers of Houston and a former victim advocate for the Houston Police Department. Kahan, whom Abbott recently appointed to the State Commission on Judicial Conduct, testified in favor of SJR 44 at the Senate hearing. He told Texas Monthly that the constitutional amendment is necessary to ensure public safety. “Judges are currently hamstrung, because the only offense where they can deny somebody bond is capital murder,” Kahan said. “For everything else, they must grant the bond, and in many cases they must grant a bond that is not punitive in nature.”

Common sense might tell you that locking more people up before trial would decrease crime. After all, defendants sitting in jail pose no threat to the public. But a wealth of research has shown that the benefit of detaining defendants before trial is more than offset by what scholars call the criminogenic (crime-producing) effects of pretrial detention. Even a short stay in jail can have devastating personal consequences for defendants and make them more likely to reoffend after being released. “All the research shows that we are currently overusing pretrial detention,” said Jennifer Doleac, an associate professor of economics at Texas A&M who studies criminal justice policy. “It does not have public safety benefits. That doesn’t mean we should eliminate it, but it means we should be scaling it back.” 

The other problem with expanding pretrial detention is a pesky little thing called the U.S. Constitution. The Fourteenth Amendment says that no state can “deprive any person of life, liberty, or property, without due process of law.” As Chief Justice William Rehnquist wrote in a 1987 Supreme Court opinion, “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” By allowing judges to deny bail to additional categories of defendants, the two measures under consideration at the Lege threaten that constitutional protection. “Our justice system is rooted in the presumption of innocence, and these bills are slowly chipping away at that,” said Ashley Fernandez Dorsaneo, a senior attorney for the left-leaning Texas Civil Rights Project. “I’m not saying that crime isn’t a problem—you have to balance public safety against an individual’s right to liberty. But these bills just go a step too far.” 

While civil-liberty advocates are concerned about SJR 44, they’re more worried about SB 1318, a complex, 23-page bill that would make sweeping changes to the state’s criminal laws. Some of its provisions appear innocuous enough. It would require judges, when they rule that no probable cause exists on a criminal charge, to justify that decision in oral or written findings of fact, and it would require the state to help counties integrate their case-management systems so that judges could pull up accurate criminal histories. More controversially, Hinojosa and Huffman’s proposed law would expand the category of people who cannot be released on personal (no-cost) bonds. In 2021, Abbott signed into law Senate Bill 6, which banned personal bonds for defendants charged with violent crimes; SB 1318 extends that ban to those charged with manufacturing or selling fentanyl, making a terroristic threat, violating certain protective orders, violating a bond condition, or illegally possessing a firearm. (Neither Hinojosa nor Huffman responded to interview requests for this story.)

Another provision in the bill would allow prosecutors to appeal the bail a judge sets for a felony defendant who has previously been granted bail for a felony charge. Until an appellate court makes its decision, the defendant would remain in jail. “That effectively gives prosecutors a veto over a judicial decision about a bail amount,” said Nick Hudson, the lead policy and advocacy strategist for the American Civil Liberties Union of Texas. Murray Newman, the president-elect of the Harris County Criminal Lawyers Association, pointed to research showing that defendants detained before trial are more likely to plead guilty—even if they are actually innocent—simply to gain their freedom. “Jailing someone before trial is absolutely a strong-arm tactic that DAs use to get people to plead guilty to something that they normally wouldn’t,” Newman said. 

The current political obsession with rising crime reminds some criminal justice advocates of the 1980s and 1990s, when a moral and racial panic over crack cocaine helped create a bipartisan consensus in favor of harsh sentences, resulting in the imprisonment of hundreds of thousands of Americans, often for possessing small amounts of drugs. Crime rates did go down. But criminologists have estimated that mass incarceration only accounted for about 10 to 25 percent of the decrease in crime since the early 1990s; other possible contributing factors range from better policing to the removal of lead from gasoline.

The disproportionate impact of the drug war on Black Americans, combined with the national decrease in crime, eventually produced a bipartisan backlash, resulting in a series of hard-won reforms. But with crime rising again, many fear a return to the mass-incarceration era—and its discriminatory effects. “The rhetoric in [the Senate hearing] reminds me of the 1980s and 1990s,” Hudson said. “These tough-on-crime proposals will just increase incarceration. They seem to be more about politics than about doing anything meaningful to improve our pretrial justice system.”