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Mangino column: Texas governor puts the brakes on non-monetary bond during pandemic

Matthew T. Mangino
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The Progress-Index

Columns share an author’s personal perspective.

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Nearly 140 prison employees and staff of the Texas Department of Criminal Justice and about 285 inmates have tested positive for COVID-19, and two inmates have died as of April 16, according to KWTX-TV in Waco, Texas.

This week, the Department of Criminal Justice sent letters to county sheriffs throughout the state announcing that state correctional facilities will temporarily stop taking inmates from county jails.

All of this in the shadow of Texas Governor Greg Abbott’s executive order thwarting judges from releasing pretrial detainees who cannot afford bail. Some sheriffs, prosecutors and judges had pledged to reduce the population of local jails in order to protect inmates and staff and help “flatten the curve.”

According to the Dallas Morning News, Abbott’s sweeping executive order blocks judges from releasing indigent defendants on non-monetary personal bonds. The no-cost bonds often carry other conditions of release - like home confinement, electronic monitoring or day reporting.

In pure Texas style, the state’s Attorney General Ken Paxton, who, according to the Texas Observer, is himself out of jail on personal bond for three pending felony charges, has intervened in support of Governor Abbott in several lawsuits challenging the governor’s executive order.

Many medical and public health experts have repeatedly emphasized that to mitigate the threat of COVID-19 spread in jails; local officials must do everything possible to reduce the jail population.

Prisons and jails make it virtually impossible to social distance; quarantine people who have been exposed; or isolate those who are ill. Prisons and jails are unsanitary, soap is at a premium and hand sanitizer is banned.

Abbott’s order highlights a wider problem. The incarceration of the poor. If a defendant has money for bail, no matter the underlying charges or the level of risk, he sleeps in his own bed, goes to work every day and walks the streets awaiting trial. If a person accused of a crime is without money she sits in jail until trial - and now risks exposure to a deadly virus.

The problem in Texas is as much about class and race as it is about protecting Texans from potential violent criminals as Abbott stressed when he put the order in place.

Abbott’s order suspends criminal procedure and all other relevant statutes and rules “to preclude the release on personal bond of any person previously convicted of a crime that involves physical violence or the threat of physical violence, or of any person currently arrested for such a crime that is supported by probable cause.”

At least four Texas prosecutors, including Dallas District Attorney John Creuzot, challenged Abbott’s executive order. The suit alleges, “It has become increasingly clear that relying on money bail, as opposed to the case-by-case decisions employed by every judge in this state, does not promote public safety and instead makes our communities less safe.”

In addition, 13 Harris County judges filed an injunction seeking to stop the governor from carrying out his order. The judges argued that the governor is attempting to suspend long standing procedural rules and “in so doing reaches beyond the statutory and constitutional authority of the governor.”

The injunction was granted by the lower court and then overturned by the Texas Supreme Court.

The suspension of criminal procedure has hamstrung judges and local officials in their efforts to address the needs of vulnerable inmates during this unprecedented health crisis. The injunction complaint alleged the governor’s action “threatens to explode jail populations during this deadly pandemic.”

Travis County District Attorney Margaret Moore recently tweeted, “We will not let the governor’s executive order limiting the availability of personal bond for certain defendants to impede our highly successful policies here that have reduced our jail population dramatically over the last month.”

This issue is about a lot more than crime and punishment - it is about life and death inside, and outside, prison walls.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.