Group Sues Harris County Over Bail System That Keeps People in Jail Just Because They're Poor

On Wednesday, 22-year-old Maranda O'Donnell was driving to her mom's house to pick up her four-year-old daughter. Then she got pulled over, and she never made it there.

O'Donnell was hauled off to jail after being arrested for driving with an invalid license. She couldn't afford her bail amount, $2,500, an amount set according to a pre-determined bail schedule that did not consider O'Donnell's circumstances. O'Donnell had been living with a friend because she could not afford her own place. She obtained a job waiting tables about two weeks ago, but because she is sitting in jail, her attorneys say she fears that job won't be there for her when she gets out.

Yesterday, lawyers with the national organization Equal Justice Under Law filed a lawsuit on O'Donnell's behalf against Harris County, Sheriff Ron Hickman and five bail-hearing magistrates. The lawsuit alleges that Harris County's use of a strict bail schedule is unconstitutional, given that magistrates rarely ever stray from it and therefore almost always fail to consider someone's ability to pay, as is required by law. The lawyers also asked a judge to immediately release O'Donnell and give her a proper bail hearing, one in which a judge would actually consider her circumstances and whether she can afford the amount on the chart. They are asking the same for more than 500 people who they say are in the same position.

"Harris county has really perfected and, in a lot of ways, epitomized the efficient processing of human beings in and out of cages," Equal Justice Under Law attorney Elizabeth Rossi told the Houston Press. "Shining a light on a place like Harris County really highlights the pervasiveness of money bail and the thoughtlessness with which criminal injustice systems throughout this country keep people in jail cells just because they're poor."

In Harris County, 77 percent of the jail population are people who have yet to be convicted of crimes, who are in jail because they cannot afford to get out. A recent study by Gerald Wheeler, retired director of Harris County Pretrial Services and a doctoral researcher, found that 81 percent of people charged with misdemeanors will spend time in jail, and of those, a quarter of them can't afford bail costing $500 or less. Only 7 percent were released on a personal bond. 

Rossi said that she and other attorneys sat in on bail hearings about 20 different times. She said those hearings only lasted about one minute, and that the magistrate never even gave defendants a chance to speak. Curiously, the attorneys note in the lawsuit that one magistrate even told someone that a bail hearing was "not the forum" for discussing his ability to pay bail. When another asked, "Can I say something?" the magistrate responded: “You can talk to me all you want, but it’s not going to change the outcome. I’m setting it according to the schedule."

Rossi said that, after watching enough of them, it was the "banality" of these hearings that struck her.

"Everybody who’s involved in that process, from the judge to the deputies, just looked at it as another routine doldrum chore they have to do," she said, "and no one is thinking about the individual standing in that red square, maybe in an orange jumpsuit, who’s about to be told whether he’ll be released to his family or not based on whether he can pay an arbitrary dollar figure."

This is not the first time that Harris County has come under fire for practices that contribute to the county jail's longstanding overcrowding problem. Most recently, the Department of Justice concluded in a yearlong investigation in 2009 that jail conditions were bad enough to violate inmates' constitutional rights. It was a conclusion that echoed a federal lawsuit the county lost decades ago in 1972, when inmates claimed that the jail was so overcrowded that it led to inhumane conditions and treatment. After the county lost, Wheeler founded Harris County Pretrial Services, a department that would seek to provide pretrial supervision to people released on personal bonds, as opposed to keeping most of them in jail before their court date.

But it was a vision that simply never fully materialized. Judges instead were reluctant to accept the idea of letting defendants go home to their families before their court date, even if they were only accused of petty or non-violent crimes. Perhaps that's because of a bail bond industry that mounted a highly successful tough-on-crime campaign throughout the 1990s, urging judges not to grant anyone that trust. As a result, Harris County developed a reputation for its unparalleled stinginess when it comes to issuing personal bonds that has persisted over the years.

In recent months, however, criminal justice officials have begun signaling their openness to change. Administrative Judge Susan Brown said that judges have been uncomfortable with issuing personal bonds in the past because they don't trust the current risk-assessment test, a point system that Harris County Pretrial Services uses to determine whether you should be released without having to pay a bondsman hundreds or thousands of dollars. So, she said, they're developing a new one. They've also hired seven more pretrial supervision officers, apparently to prepare to give more people personal bonds. In addition, Harris County District Attorney Devon Anderson told the Press last week that the judges have also finally approved a pilot program for providing all people defense attorneys at their bail hearings, so they have someone to argue before the magistrate why they deserve a more affordable bail. (A spokesperson for Anderson and Sheriff Ron Hickman did not return a request for comment.)

That's something that may have mattered to Patrick Brown, a man accused of stealing a guitar, the most recent person to die in the Harris County Jail. A source with knowledge of the case told the Press that Harris County Pretrial Services had recommended Brown for a personal bond. Yet even though he had no violent criminal history, for some reason a judge still denied it, and Brown couldn't afford his $3,000 bail. Two men, one of whom had just posted bail and was on his way out of lockup, have been charged with beating Brown to death inside a holding cell later that night.

Since the start of 2015, Equal Justice Under Law has filed 17 lawsuits across the country, including this one, seeking to end the cash bail system. Where it has won, local jurisdictions — mostly midsize cities such as Montgomery, Alabama, or Velda, Missouri — have been forced to upend their bail systems and entirely ditch their existing bail schedules, which were found to be unconstitutional.

The group has won eight cases so far, and hasn't yet lost a single one. 

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Meagan Flynn is a staff writer at the Houston Press who, despite covering criminal justice and other political squabbles in Harris County, drinks only one small cup of coffee per day.
Contact: Meagan Flynn