Maranda Lynn ODonnell’s supposed crime was small. On May 18, she was arrested for allegedly driving with an invalid license. But the 22-year-old mother says she was still jailed for two days at the Harris County Jail in Texas, kept away from her four-year-old daughter and her new job at a restaurant.
If ODonnell had more money, she would have been able to go home immediately. But she doesn’t have many resources. She can’t afford her own home, so she and her daughter stay with a friend. She relies on WIC benefits to feed her child. She lives paycheck to paycheck. So when she was told she either had to pay a $2,500 bail after her arrest or be detained, she was stuck in the jailhouse.
She’s not the only one. In a lawsuit she filed with the nonprofit Equal Justice Under Law against Harris County, two others recounted similar stories. Loetha Shanta McGruder, another 22-year-old mother of a four-year-old with Down syndrome and ten-month-old infant who is also pregnant with a third child, was arrested on May 19 in Jacinto, Texas and told to pay a $5,000 bail. She can’t afford it; she has no job, no money or savings, lives on disability payments and child support, and was already planning to apply to Medicaid so she can get OB-GYN care as well as food stamps. Robert Ryan Ford, a 26-year-old with no work, no bank account, and no assets was told to pay $5,000 after he was arrested on May 18.
The three of them are lucky, though. Two days after her arrest, ODonnell was released and reunited with her daughter. While she almost lost her job — the restaurant hired a new waitress when ODonnell missed a few shifts — the new hire didn’t work out and she should be able to go back to work later this week. McGruder and Ford are both supposed to be released on Monday.
But the county’s practices haven’t changed since the lawsuit was filed, according to one of the attorneys, and hundreds of other people too poor to afford bail are still being held.
The Harris County Jail is the largest in Texas and the third largest in the country. And most of the people inside, 77 percent, are there because they can’t afford to pay bail of $5,000 or less, according to the lawsuit. In a typical month, the jail will see about 8,600 people, 6,800 of whom are detained awaiting trial. About 8 percent of those pretrial detainees are arrested on misdemeanors.
Even worse, 55 people died in the Harris County Jail between 2009 and 2015 while awaiting trail and unable to afford bail. The most recent death was Patrick Brown, according to the complaint, who died on April 5 while being held on a $3,000 bail he couldn’t afford after he was charged with misdemeanor theft.
If an arrestee “can’t pay, they sit in jail.”
And while the jail population fell by 2,500 between 2009 and 2014, the share of people there waiting for their trials only fell by 15, while the number of people awaiting trial on a misdemeanor actually grew by 29 percent.
The lawsuit argues that the practice of detaining people too poor to pay bail without assessing whether they can afford it is unconstitutional. It alleges that the county’s practice is to determine bail based on a generic offense-based schedule. Anyone who can’t pay is detained. Then usually within 24 hours, arrestees appear via a videolink before a hearing officer, who determines probable cause for the arrest and approves the original bail amount, sometimes adding to it, without inquiring about whether the arrestee can pay. Arrestees don’t get defense attorneys, nor are they usually allowed to speak or request to have their bail reduced. ODonnell said she was told not to speak during her hearing and it took all of 60 seconds. As one prosecutor recently put it, according to the lawsuit, if an arrestee “can’t pay, they sit in jail.”
After the hearing, anyone who still doesn’t have the money is taken to the County Court to see a judge and is assigned a court-appointed attorney. But bail is still unlikely to be reduced, given that it only happens in less than 1 percent of cases, and detainees stay locked up outside of the courtroom, often not even appearing inside. Many plead guilty — almost 80 percent, compared to 56 percent of those who aren’t locked up before trial — because they are told they can get released more quickly.
“Harris County’s wealth-based pretrial detention system violates the Equal Protection and Due Process Clauses of the United States Constitution,” the lawsuit says. “It has no place in modern American law.” It seeks an injunction to end the practice.
It’s not the only place using such practices, however. Money bonds are required in a growing share of pretrial releases. California faces a class action lawsuit against its use of money bail, while the practice is being reformed or ended in big cities like New York as well as small ones in places like Missouri and Alabama. Officials at the Department of Justice (DOJ) have also put the practice on notice, sending chief justices and court administrators across the country a letter in March warning against money bail schemes that jail people solely because they can’t pay.
Other, similar practices have come under notice by the DOJ. The same letter highlighted modern-day debtors prisons, where courts levy fines and fees without determining whether people can pay and then jailing them if they can’t afford them. Lawsuits have been brought against the practices in a number of places across the country.