When it comes to social distancing and other measures to prevent the spread of coronavirus, every location where people gather counts. That especially includes jails, where space is at a premium.
Since the pandemic took hold, police departments, courts and sheriffs around Texas and the U.S. have worked to reduce incarceration without endangering the public. It’s a balance best left to experts. So, it’s frustrating that Gov. Greg Abbott stepped in with an ill-timed and poorly conceived order that has created confusion for the criminal justice system.
Abbott’s executive order, issued Sunday, denies release without cash bail to anyone booked into a Texas jail who in the past was “convicted of a crime that involves physical violence or the threat of physical violence,” or any person arrested on suspicion of such a crime.
The governor explained that the order was meant to protect Texans from potential violent criminals and preserve resources for the effort to contain COVID-19. And some jurisdictions have seemed a bit too eager to clear out the jails.
Abbott’s order creates a stratification of justice based entirely on ability to pay. Release without bail, sometimes known as personal bond, is a way of letting a suspect go free before trial, sometimes in exchange for agreeing to show up for hearings or undergo drug treatment. The last thing our system needs is more incentive to tilt in favor of the wealthy or against the poor.
No sheriff or judge is eager to release someone who goes on to commit a violent crime. But nor do they want to oversee a massive, resource-draining COVID-19 outbreak. Abbott’s order injects vagueness and uncertainty into an already difficult balancing act.
Dallas and Harris County jails have already seen coronavirus cases. In Tarrant County, the jails have avoided any cases among inmates or staff. That’s been accomplished in part by deliberately releasing nonviolent inmates and keeping those who pose no threat from being booked into the jail in the first place. As of Tuesday, the jail population was 3,443, down from the typical 4,000 or so.
Sheriff Bill Waybourn’s staff is still determining how to implement the governor’s order, said Lt. Jennifer Gabbert, a public information officer. Department leadership and staff have to go through cases individually to determine if the order applies, and there’s no way to tell yet how many inmates could be affected.
“For a lot of people, if you go by exactly what the order says, some charges may have been a long time ago,” Gabbert said. “You have to look at their past.”
So, someone busted on a drug possession charge who had a simple assault conviction years ago — but no sign of violent behavior since — could end up held in jail if they can’t pay bail. Someone in the exact same circumstances who can afford bail could go free.
Many police departments, including Fort Worth’s, are doing their best not to jail nonviolent, low-level offenders to help fight the pandemic. Abbott’s order threatens to undo that kind of work.
And it’s not even clear that the order is constitutional. Courts have increasingly held that some bail systems violate provisions of equal justice, and a reform movement is under way.
At the end of his order, Abbott gives judges sweeping discretion to release individuals “for health or medical reasons,” as long as district attorneys have a chance to object.
Hmmm: Medical reasons. Like, say, containing the spread of a virus? When an inmate gets sick, taxpayers are on the hook for treatment. County health facilities need to be able to focus on the overall pandemic, and if sheriffs can reduce the burden without releasing violent offenders, they should be trusted to do so.
Until now, Abbott’s executive orders waiving state laws and regulations have been targeted and useful in the fight against coronavirus, freeing up resources and taking steps to help the medical, trucking and grocery industries. This one misses the mark, though. He should rescind it immediately.
