Civil and Human Rights

When cash bail violates the Constitution

Maranda Lynn ODonnell, a 22-year-old waitress and single mother living paycheck to paycheck, was arrested last year in Harris County on a misdemeanor charge of driving with a suspended license. Because she didn’t have $2,500 for bail, she was forced to spend three days in jail by a criminal justice system that is supposed to presume innocence until proven guilty.

The 5th Circuit Court of Appeals heard oral arguments recently in ODonnell’s case to determine if Harris County’s money bail system denied her equal protection under the law because she was poor. The court’s ruling could affect not just Harris County, but cash bail systems elsewhere in Texas and around the country.

The case turns on the 14th Amendment, which was enacted after the Civil War and guaranteed to all people the liberty and equality envisioned by the Declaration of Independence a century earlier. The amendment reads, in part, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

During the debates over the 14th Amendment, its framers explained that it was designed to give to “the humblest, the poorest, the most despised … the same rights and protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.”

The Supreme Court has a long history of rulings against deprivations of liberty that affect people based on their financial status. The 5th Circuit should rule similarly in this case.

Nationwide, 34 percent of jail inmates in 2009 were jailed pretrial because they could not afford to pay bail. Today, 467,500Americans who have been charged but not convicted are locked up because they are unable to raise bail. They are being punished for being poor.

And yet the Supreme Court held earlier this year that “a basic premise of our criminal justice system is that (o)ur law punishes people for what they do, not who they are.”

Historically, bail has been used to ensure pretrial liberty — to spare defendants punishment before conviction but ensure they show up for trial. Bail was not intended to keep the accused locked up until trial.

Defenders of Harris County, which detains 40 percent of all people arrested on misdemeanor charges before trial, have argued that cash bail is necessary to protect public safety and ensure defendants’ attendance at trial. But an array of alternatives — pretrial supervision, periodic drug testing and court date notifications, for example — achieve the same goals without violating the 14th Amendment guarantee of equal justice under the law.

Many states — Kentucky, New Jersey, Colorado, Maryland and West Virginia among them, plus the District of Columbia — have shifted from bail-based to risk-based release systems so that even those without financial resources may remain free before trial. Reforms such as these, the states have found, not only reduce the number of people detained pretrial but actually increase the appearance of defendants at trial, with no degradation to public safety.

ODonnell was accused of a minor, nonviolent crime and was not a flight risk but still had to spend time in jail. That’s why the district court said, “For misdemeanor defendants unable to pay secured money bail, Harris County maintains a ‘sentence first, conviction after’ system that pressures misdemeanor defendants to plead guilty … because that is the only way to secure timely release from detention.”

The Harris County bail system denied ODonnell “equal protection of the laws” by demanding a sum of money she did not have to secure the same freedom that others with more money could buy. Disparity in treatment based on wealth turns a constitutional right into a privilege only for those who can afford it. The 5th Circuit should strike down this arbitrary imposition of bail and rule in ODonnell’s favor.

(In print 10/11/2017 – page A17)

___

This article appeared in at least the following additional outlets:

More from Civil and Human Rights

Civil and Human Rights
February 28, 2024

“I Am Free But Without A Cent”: Economic Justice As Equal Citizenship

93 Geo. Wash. L. Rev. (forthcoming 2025).
By: David H. Gans
Civil and Human Rights
U.S. Supreme Court

Chiaverini v. City of Napoleon, Ohio

In Chiaverini v. City of Napoleon, the Supreme Court is considering whether police officers who file baseless criminal charges against a person are exempt from liability simply because the officers also filed other charges against...
Civil and Human Rights
February 5, 2024

Announcing CAC’s Inaugural Scholar-in-Residence, Professor Alexis Hoag-Fordjour

The Constitutional Accountability Center is pleased to announce that it has selected Professor Alexis Hoag-Fordjour...
Civil and Human Rights
January 31, 2024

Ending US jail workers’ slavery clause ‘could net billions’

Context
What’s the context? Here's how this study quantifies the benefits of ending the 'exception clause'...
By: Miriam Becker-Cohen, David Sherfinski
Civil and Human Rights
December 6, 2023

Supreme Court appears likely to ease process for workplace discrimination claims

The Washington Post
The Supreme Court seemed prepared on Wednesday to make it easier for workers to pursue...
By: Brianne J. Gorod, Ann E. Marimow
Civil and Human Rights
December 6, 2023

RELEASE: Focus on Hypotheticals at Supreme Court Argument this Morning Shouldn’t Distract from the Question in this Case and Title VII’s Answer

WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Muldrow v....
By: Brianne J. Gorod