A year and a half after Sandra Bland died in a Texas jail as she tried to get the money to pay her way out, the largest jail in the state may now be forced to change its ways.
On Monday afternoon, civil rights attorneys will ask for a preliminary injunction to make Harris County stop jailing people accused of minor crimes solely because they can’t pay an arbitrary amount of money.
Depending on the outcome of the case, it could have ripple effects on bail practices across the country.
The lawsuit was sparked by Maranda O’Donnell, a 22-year-old mother who was pulled over and arrested for allegedly driving with an invalid license in May 2016. For this crime, a hearing officer set her bond at $2,500 during a video hearing that lasted 60 seconds.
This sum was far beyond O’Donnell’s means. She was living at a friend’s house at the time because she couldn’t afford her own place, and she receives federal benefits from the Women, Infants and Children (WIC) program to help feed her daughter.
But the hearing officer never asked her about her ability to pay, nor was any defense attorney present to argue on her behalf. Instead, sheriff’s deputies told her not to speak at all.
This appears to be standard practice in Harris County when deciding who goes to jail before trial. Dozens of videos to be presented in court Monday show hearing officers shouting at people who try to defend themselves or ask questions.
One hearing officer became so enraged when people before him answered “yeah” to his question instead of “yes” that he raised their bond amount to punish them.
In several other videos, hearing officers curtly refuse to release people without cash bond because they are homeless. One woman who was arrested while she was being kicked out by her mother tries to explain she has a friend she can stay with, only to be interrupted and shouted down by the officer.
Roughly 80 percent of the 8,500 people in jail on a given night are awaiting trial. Most of them are there because they can’t afford their bond, according to the lawsuit. Deaths are unusually common in the Harris County Jail.
There are few defenders of Harris County’s bail practices. Shortly after his election in November, Sheriff Ed Gonzalez filed an affidavit with the court calling the current bail scheme unconstitutional and “a waste of public resources.” On Friday, District Attorney Kim Ogg joined the sheriff in publicly denouncing the bail system.
In her court filing, Ogg called bail reform “necessary and long overdue” and pledged her office would recommend more reasonable bail conditions, though the county judges named in the lawsuit ultimately set bond based on a bail schedule that lists set amounts of money for different categories of crimes.
“We do not want to be complicit in a system that incentivizes presumptively innocent people to plead guilty merely to expedite their release from custody,” she wrote. “We do not want to administer punishment before the defendant has been adjudicated guilty.”
County commissioners have also criticized bail practices since the lawsuit was brought. They voted unanimously last week to develop a program that would put public defenders in bail hearings. The vast majority of defendants currently appear at these hearings without an attorney.
Still, the county continues to defend current practices at taxpayer expense. So far the county has been billed $1.2 million by the private law firms it’s retained for its defense, including one attorney who wrote the discredited Swift Boat Veterans book smearing John Kerry ahead of his presidential run.
“Can we make decisions about whether people are in jail or out of jail on the basis of how much money they have in their pocket?”
At a hearing in February, another county attorney, James Munisteri, argued that the pretrial detainees are there because they want to be in jail, not because they can’t afford to get out.
Federal district judge Lee Rosenthal seemed taken aback by that argument, comparing it to the “historical argument that people enjoyed slavery because they were afraid of the alternative.”
Though top law enforcement and local lawmakers won’t stand behind the county’s practices, there is one powerful entity deeply invested in preserving the status quo: the bail bond industry. If a person can’t afford to pay the court upfront, their family or friends can pay a bail bonds agency a nonrefundable fee to put up the cash for bond. The Pretrial Justice Institute estimated the Harris County bail bond industry collected at least $34.4 million in nonrefundable bond fees in a single year.
The American Bail Coalition, a national group of bail bondsmen and sureties, recently filed an amicus brief in the Harris County lawsuit via star conservative attorney Paul Clement. “Bail is a liberty-promoting institution as old as the Republic,” Clement wrote.
Monday’s hearing will be a key test for the viability of bail nationally. The practice of charging money for bail will be subjected to thorough evidentiary scrutiny for the first time, said Alec Karakatsanis, founder of the nonprofit Civil Rights Corps.
“We don’t even require good reasons for putting people in jail cells, and the bail system has particularly evaded any actual scrutiny,” said attorney Alec Karakatsanis of Civil Rights Corps, one of the nonprofits suing the county. “So this case…will be seen as very important around the country as applying some amount of intellectual and evidentiary rigor to the question of, can we make decisions about whether people are in jail or out of jail on the basis of how much money they have in their pocket?”
Aviva Shen, a former ThinkProgress editor, is now a freelance writer in New Orleans focused on criminal justice.