In the wake of a midterm election that swept some 20 Republican appellate judges out of office, Texas Supreme Court Chief Justice Nathan Hecht called on the Texas Legislature to reform a system he called “among the very worst method of judicial selection.”
“When partisan politics is the driving force, and the political climate is as harsh as ours has become, judicial elections make judges more political, and judicial independence is the casualty,” Hecht told both chambers of the Legislature Wednesday morning in his biennial address, a wide-ranging speech that touched on judicial salaries, technology, and bail reform. “Make no mistake: A judicial selection system that continues to sow the political wind will reap the whirlwind.”
In recent history, partisan judicial elections have played well for Texas’ majority party; the state’s two high courts, whose justices run statewide, are all Republicans, as they have been for two decades. But this past year, as turnout surged in urban areas and voters leaned heavily toward the straight-ticket voting option, Democratic judges were swept onto the bench on the coattails of candidates like Beto O’Rourke. All told, Hecht said, in the last election, Texas’ district and appellate courts “lost seven centuries of judicial experience at a single stroke.”
“Qualifications did not drive their election,” Hecht said. “Partisan politics did.”
It wasn’t a new criticism, nor was it the first time Hecht himself has made such a call. Justices on Texas’ two high courts have been among the most vocal critics of a system that requires justices to run as partisan figures but rule as impartial arbiters, and the State has been challenged in court over the practice. But the call took on new significance after a shattering judicial election for Texas Republicans, who lost control of four major state appeals courts based in Austin, Houston, and Dallas. Judges and lawyers who practice before those courts have fretted not just about the startling shift in judicial philosophy, but also the abrupt loss of judicial experience.
Hecht called on lawmakers to consider shifting to a system of merit selection and retention elections – or to at least pass legislative proposals that would increase the qualification requirements for judicial candidates.
The chief justice also brought up an issue that has become one of his major focuses: Texas’ bail system. Texas money bail practices have recently been called unconstitutional by federal judges, who say defendants are wrongly detained simply because they are too poor to pay bond amounts for their release from jail before trial. Hecht called for lawmakers to pass bipartisan bail reform legislation filed this week by State Sen. John Whitmire (D-Houston) and State Rep. Andrew Murr (R-Junction).
The bills would implement a tool to be used by judges within two days of an arrest that assesses a defendant’s risk of skipping court hearings or presenting a danger if released. Under the proposal, those who are deemed a lower risk, generally nonviolent offenders, would be released on a no-cost bond, while judges could deny bail and detain those who they deemed a threat.
“It is time – it’s actually past time – to ensure that defendants who pose no risk to the public are not jailed, and that those who do, are,” Hecht said.
He touted the use of a risk assessment tool to let judges make more informed decisions – instead of setting a money bail bond amount simply based on the criminal charge, the tool would look at the defendant’s criminal history and age. The tools have gotten some pushback from advocates who say evaluating some criminal histories can reinforce a system that is prejudiced against poor people of color.
But Hecht said the tools have been validated, tested, and proven to accurately predict a defendant’s risk of flight, violence, or recidivism.
In his 2017 speech, Hecht focused on a grandmother who was kept in jail for months on a low bond for shoplifting – one of many examples of low-level defendants held in jail because they couldn’t afford the small cost of their release. This year, though he again mentioned many people lose their jobs and families simply because they can’t afford to get out on low-level charges, he highlighted a situation that prompted a call for more detention in jail, not less.
He told the story of Damon Allen, a Texas highway trooper who was gunned down by a man out on a money bond despite having previously assaulted a sheriff’s deputy. Gov. Greg Abbott last summer asked for state lawmakers to pass a reform measure based on Allen; Whitmire and Murr named their bills the Damon Allen Act.
“Let me be very clear: money bail has its place, but blindly following a one-size-fits-all schedule of offenses and amounts – setting $15,500 bail for Damon Allen’s shooter after he assaulted a sheriff’s deputy and led others on a 100 mile-per-hour chase – is not informed decision-making,” he said.
The attempt to pass similar bills in 2017 failed, which Whitmire blamed on opposition by the money bail bonds industry.
Hecht also asked the Legislature for judicial pay raises, a boon the branch has gotten only twice in the last 18 years. The Judicial Compensation Commission recommended a pay raise of 15 percent; the Texas House’s initial budget proposal would fund just a 10 percent raise.
“Texas has not compensated her judges fairly,” he said.
But better technology, Hecht said, is “the judiciary’s single most important need,” calling on lawmakers to fully fund an ask from the Office of Court Administration.
Other issues that he included in his call for change were allowing modification of court procedures following a natural disaster, like Hurricane Harvey, and increasing mental health assessments in jail.