Originally published in the Houston Chronicle.
In the national debate over bail policy, Texas has refused to gamble with public safety. Other jurisdictions embraced blanket cashless bail policies that turned courthouses into revolving doors and allowed repeat criminals and violent offenders to walk free. But long before recent headlines, Texas began charting a different course.
With several new pretrial detention laws and a proposed constitutional amendment to give judges the ability to deny bail to the most violent offenders, Texans are sending a clear message: Violent and repeat offenders can’t be allowed to buy their freedom.
Texas’ Damon Allen Act, signed into law in 2021, was an important first step. It closed a dangerous loophole by prohibiting high-risk and violent offenders from receiving cashless bail. Lawmakers then went further, approving a constitutional amendment that would give judges the discretion to deny bail in the most serious cases — a measure now headed to voters on the November ballot.
Texans understand the stakes — polling by Right On Crime and the Texas Public Policy Foundation showed 81% of Texas voters across the political spectrum support denying pretrial release to the most violent offenders.
For too long, bail has been treated as a financial transaction instead of a public safety decision. The first and most obvious question must always be: release or not release? Can this person be safely returned to their community, or does their history and risk profile demand detention until trial?
Protecting citizens is our government’s most basic duty. Blanket bail policies fail that duty twice — by allowing dangerous offenders back on the streets and by jailing low-level offenders simply because they cannot afford to pay. Both outcomes are counterproductive.
Worse still, when violent offenders can purchase their release, it not only creates more victims but also erodes confidence in law enforcement and undermines the credibility of our entire justice system.
Decades ago, the U.S. Supreme Court’s ruling in United States v. Salerno established that the right to bail is not absolute. The Court upheld the Bail Reform Act of 1984, which allows for the denial of bail in certain circumstances, particularly when there is a reasonable fear that a defendant may pose a danger to the community or may flee.
The rest of the country is still catching up. In Washington, D.C., broad cashless bail practices presume most defendants as eligible for release without conditions. Judges cannot use bail to protect public safety — except in the most extreme cases, such as murder charges or if the court believes the accused might flee. The result has been that repeat violent offenders return to neighborhoods and create new victims.
President Donald Trump’s recent executive order takes direct aim at the failures of cashless bail. By requiring dangerous suspects in Washington, D.C., to be held pretrial and incentivizing other states to adopt the same approach, the order seeks to close loopholes that have allowed violent and sexual offenders to slip back into communities unchecked. Violent criminals should not have the option to buy their freedom. This executive order recognizes this current threat and addresses it head-on.
While detaining high-risk individuals, we should not lose sight of the fact that many offenders are low-risk and can be released safely on a personal bond. Judges should have the discretion to hold violent offenders, but money should never be the deciding factor. And we know that locking up low-risk offenders pretrial only wastes taxpayer dollars and distracts from the real priority of keeping dangerous criminals off the streets.
That is how you stop the revolving door and restore fairness to courtrooms across the nation.
Of course, safeguards must remain in place. Bail denial hearings should include counsel, and due process protections must ensure that no one is unjustly held. Public safety must always be the litmus test which determines when pretrial detention is both lawful and necessary.
Texas’ risk-based system has led the way. Other states should follow suit instead of doubling down on failed cashless bail experiments. When it comes to protecting families and communities, public safety must unequivocally come first — because without safety, every other promise of government falls apart.