As the new coronavirus continues to spread in Texas’ two biggest county jails, Gov. Greg Abbott has made it harder for thousands of inmates to get out of local lockups.

In an executive order Sunday, Abbott barred inmates accused or previously convicted of violent crimes from being released from jails without paying bail. Those with the same criminal history or the same charges can still walk free if they have access to cash — a distinction that bail reform attorneys argue makes the order unconstitutional.

The sweeping move — which suspends a swath of the state law on bail — comes as advocates and local governments across the country work to minimize population in lockups, where the risk of the new coronavirus is particularly high given poor sanitary conditions and close quarters. The virus has already reached the Harris County and Dallas County jails, as well as Texas prisons and a juvenile detention center. Abbott’s order came the same day that Harris County announced the first confirmed case in its jail, where some 30 inmates are showing symptoms of the virus and as many as 500 others may have been exposed.

Abbott said at a news conference Sunday that “releasing dangerous criminals makes the state even less safe ... and slows our ability to respond to the disaster caused by COVID-19.” The announcement comes as Harris County officials are working to release hundreds of inmates because of concerns about the virus in the county’s jail — efforts that have drawn opposition from state leaders.

“I’ve heard from law enforcement officials as well as citizens alike who’ve raised concerns about releases that have already taken place or anticipated releases that could take place,” Abbott said. “We want to reduce and contain COVID-19 in jails and in prisons for the benefit of both the inmates and the law enforcement officers of those facilities."

Some judges across Texas were already releasing more inmates on no-cost personal bonds because of COVID-19, handing a win to bail reform advocates who fight against systems that often rely on cash for release. Release on personal bonds often requires conditions like regular check-ins and drug testing. In some of the state’s largest counties, jail populations have dropped by hundreds in weeks.

But some jail releases have prompted concern. In Harris County, a murder suspect was released from jail after he said he was afraid of contracting COVID-19 there. A judge allowed him to pay just 3.5% of his $60,000 bond up front, according to the Houston Chronicle — a fraction of what is normally required. Normally, a defendant can be released from jail after paying the full, refundable amount to the courts or paying a fee to a private bail bonds company, usually 10% of the full amount.

Abbott’s order applies to inmates who have been accused or convicted of “a crime that involves physical violence or the threat of physical violence,” which defense attorneys called a vague and subjective standard. Abbott’s directive also appears to apply to inmates with any history of violent offenses — meaning a person arrested on a nonviolent drug charge last week could be held if he had a decades-old conviction of a violent offense.

Although the order bans release of inmates on no-cost, personal bonds, it does not set a standard for how high a bail amount must be. Presumably, judges could still release inmates on bonds of $1, defense attorneys said.

Legal experts questioned the order’s validity, and it drew immediate rebukes from Democrats and bail reform advocates, who argued the order discriminates against poor people. Several Texas counties, including Harris and Dallas, have had their bail practices deemed unconstitutional in recent years for discriminating against poor defendants.

“It is a dangerous, unprecedented, chaotic and flagrantly unconstitutional edict that if enforced would expose many people around the state of Texas to a public health catastrophe,” said Alec Karakatsanis, executive director of the Civil Rights Corp, which has been at the helm of Harris County’s federal bail lawsuits.

El Paso Democrat Joe Moody, a state representative and former prosecutor and defense attorney, said that “if followed, this order will see jails bursting at the seams [with] minor drug offenders, homeless people whose most recent ‘crime’ was something like simple trespass & everyday citizens picked up on the flimsiest of allegations.”

When someone files a lawsuit against enforcement of this order (which I assume will happen fairly soon), please reach out as I’d like to sign an amicus brief in support of your position.



THE END — Joe Moody (@moodyforelpaso) March 29, 2020

According to Abbott’s order, a judge may consider a defendant's release for health or medical reasons after the district attorney is notified and there is an opportunity for a hearing.

The order comes on the heels of a dispute between state and local leaders in Harris County, where advocates and officials are working on several efforts to limit the county jail population by releasing potentially thousands of inmates who have yet to be convicted of crimes and are being held only because they cannot pay. Health officials have warned that even a minor outbreak in the jail, one of the country’s largest, could overwhelm the city’s hospitals. An outbreak there would also pose a risk to the health of the jail’s thousands of staff members.

The county’s chief executive, Judge Lina Hidalgo, was reportedly mulling an executive order for compassionate releases of medically vulnerable, nonviolent inmates from the county jail — but shelved her plans in anticipation of a showdown with Texas Attorney General Ken Paxton, according to the Houston Chronicle.

Separately, attorneys in a long-running federal lawsuit over the bail practices in Texas’ largest county have asked a federal judge to consider a mass release of thousands of inmates who are being held in the jail only because they cannot pay bonds to get out. Paxton and Abbott asked Sunday to intervene in that lawsuit, arguing that public safety is at stake and that a judge cannot allow a blanket release of hundreds or thousands of inmates.

“It is not just violent offenders that pose a threat,” an attorney for the state wrote.

Attorneys for the inmates and for county officials including the sheriff had reached an agreement to release inmates accused of some nonviolent offenses, the Chronicle reported.

A criminal justice reform advocate in Harris County said Abbott’s order was unwelcome and said there was never any intention to release inmates who were deemed dangerous to the community.

“This is truly a matter of life and death,” said Devin Branch, lead organizer of the Texas Organizing Project’s Right2Justice campaign. “It is bad enough that in normal times we punish people for being poor by forcing them to stay in jail until their trial when they are legally innocent. It’s unconscionable to do it now when it could kill them.”

Patrick Svitek contributed to this report.