With all the news lately surrounding the Coronavirus pandemic, you can be forgiven for not paying attention to a recent order by Governor Abbott to release more folks who are arrested, and inmates whose cases are pending. Criminal defense lawyers did notice, though, and maybe not for the reasons you might expect.
Usually, an order for the release of our clients is going to be a good thing, but Governor Abbott’s order was poorly written when it came to one key aspect. He ordered that those who are charged with violent crimes are not eligible for personal bonds. And he went even further. His order stated that anyone who has EVER been charged with a violent crime is not eligible for a PR bond. The political motivations for such an order are pretty clear. The Governor doesn’t want to be held responsible if someone released on his order goes out and commits a violent crime. That’s fair. But the problem is all in the wording.
First, the order does not prohibit the release of those charged with violent crimes, it only prevents them from getting a personal recognizance bond. A personal bond, or “PR Bond” is where a person charged with a crime is granted release without having to pay for a bail bond. Under Abbot’s order, a person could still be released if he or she has the cash to go through a bail bondsman. Houston and other counties have been moving away from a system that allows those with deep pockets to get a different kind of “justice”. This order flies in the face of efforts to do so.
Second, and perhaps more importantly, the order violates the separation of powers doctrine and is therefore unconstitutional. There are certain powers that are granted to the governor, but he does NOT have the power to tell judges how to interpret the law. And that’s exactly what his order attempts to do, by limiting judge’s power to grant a PR bond even when the law says they should grant it.
This order did not go unnoticed in the criminal defense community. Austin Criminal Defense Lawyers Association (ACDLA) is teaming with the NAACP, Harris County judges, and others, filing suit against the governor in an attempt to have the order declared unconstitutional.
In the meantime, there are temporary remedies for defendants. For example, a low dollar amount cash bond is not prohibited by the order. An attorney could achieve this by arguing for it in front of the magistrate. The issue, however, is not with the defendants who are well-represented, but for those who cannot afford an attorney. At the time bond is set, they may not have an appointed lawyer yet. Pretrial Services is in charge of gathering information and presenting it to the magistrate so that he or she can make a decision on a Personal Bond. As of Monday this week, they were not even preparing the paperwork for individuals who had ever been charged with a violent crime. So, while there is a patchwork remedy available, dozens or hundreds of low-income defendants are still being affected by the order.
In emergency situations, the need to follow protocol – including the constitution – is heightened. Governor Abbott’s order could have done so by providing guidance, rather than a strict order to judges. Unfortunately, in an attempt to appear tough on crime, his political motivations once again caused problems where a better drafted order would not have caused any. At a time when Texas desperately needs fewer problems, more guidance, and stronger leadership, our Governor is making the job harder.