Bail has become a central talking point in the Travis County district attorney’s race as candidates spar over approaches to public safety.

District Attorney José Garza was elected on a platform of bail reform, promising to divert nonviolent offenders out of jail.

Meanwhile, his Democratic primary challenger Jeremy Sylestine has criticized what he says is Garza’s lenient approach to bail, particularly when it comes to people accused of violent crime. Sylestine told the American-Statesman that bail amount plays an “important role” in public safety.

What is bail and how is it set in Travis County?

Bail is the amount of money required for the temporary release of someone who has been arrested and accused of a crime. It allows them to be released from jail and is primarily intended to ensure their return to court.

“The key thing to remember is that the person has not been found guilty of anything,” said Bradley Hargis, director of the Capital Area Private Defender Service, a group that provides lawyers for indigent clients.

When setting bail, Hargis said, judges are asked to consider “the seriousness of the charge, the likelihood of flight and the person’s financial conditions.” The risk that a suspect poses to the community does play a role in setting bail. But the U.S. Constitution protects against “excessive bail,” so judges are meant to balance these factors.

The severity of the crime is not always the best indicator of how likely a defendant is to abscond or commit a crime upon release, said Angelica Cogliano, director of the Austin Criminal Defense Lawyers Association. Community ties are one important factor, according to Cogliano.

Judges can also set conditions of release, including requiring electronic monitoring devices or drug testing, which can address public safety concerns.

In Travis County, bail is initially set by a municipal judge during a process called magistration, almost always outside the presence of prosecutors or defense attorneys. The judge makes the decision using the arrest affidavit and documents prepared by the county’s pretrial services division, including a public safety report. This report includes information about criminal history.

Prosecutors may play a role in bail further down the line, especially if there is a request to change the conditions of release.

What is bond?

Bond refers to how an arrestee can get out of jail. There are three pathways:

• A cash bond is a straightforward payment of the entire bail amount to the court. It is returned, if all conditions are met, after the trial.

• A surety bond involves a bail bond agent, who will guarantee a person’s bail in exchange for a nonrefundable fee.

• A personal recognizance bond allows a person to be released without posting any money but can still involve release conditions. In 2021, Texas Senate Bill 6 prohibited personal recognizance bonds for people accused of violent crimes.

How has bail played a role in the Travis County district attorney’s race?

As Sylestine criticizes Garza’s approach to public safety, he has zeroed in on how the office handles bail. Though prosecutors are not involved in the initial bail setting, Sylestine said that when he worked at the district attorney’s office under Garza, prosecutors were told to “proactively” look for cases where bail could be lowered. Sylestine suggested that the policy might influence a prosecutor to ignore indications of dangerousness.

In an interview with the Statesman, Sylestine said that it was his view that the bail amount plays an “important role” in public safety.

Garza previously denied that his office has a bail policy. James Aldrete, spokesperson for Garza’s reelection campaign, said in a statement that, although Garza has worked with Travis County officials “to end the discrimination of poor people in our bail system,” judges set bail “outside of the presence of prosecutors.”

“Since DA Garza took office, he has pursued a simple goal: People who pose a danger to our community should stay in jail; people who do not pose a danger to our community should be out until their case is decided,” Aldrete said.

In 2021, the Legislature passed a law requiring cash bail for people accused of violent crimes. However, there is a growing national progressive movement for eliminating the practice.

Why do some people advocate for the elimination of cash bail?

Cash bail refers to any kind of bond that requires payment, including surety bonds. There has been a long-standing movement to eliminate cash bail, which advocates like Krish Gundu of the Texas Jail Project argue creates a “two-tiered system” that advantages wealthier defendants.

The bail amount should change in accordance with someone’s financial status, but it often doesn’t, according to Geoff Burkhart, director of the Texas Fair Defense Project. Burkhart’s organization was part of a federal lawsuit against Dallas County, which contended that the county’s bail practices were unconstitutional. Even if bail amounts did accommodate someone’s finances, Burkhart said, it is still more restrictive to a poor defendant.

Eliminating cash bail, Cogliano argued, would eliminate wealth from the equation and allow someone’s release from jail to solely rest on whether they pose a risk to the community or might abscond.

This article originally appeared on Austin American-Statesman: What is bail and why is it central to the Travis County DA’s race?