No Bailout for Harris County, Texas After 5th Circuit Declares County Misdemeanor Cash Bail System Unconstitutional

The Federal Fifth Circuit Court of Appeals which handles appeals of Federal cases from Louisiana, Mississippi, and Texas, issued a decision on February 14, 2018 ruling that the cash bail system in Harris County, Texas (the most populous county in Texas comprised mainly of Houston) violates the equal protection and due process rights of poor misdemeanor arrestees by using a “cookie cutter” system to determine the amount of cash bail an arrestee should pay. 

The Harris County cash bail system relied on a fixed fee schedule that, on paper, should have taken into account additional factors such as the defendant’s ability to pay, the charge and community safety as grounds to reduce the cash bail from the amount listed in the fixed fee schedule.  Evidence presented before the lower court showed that bail hearings commonly lasted only seconds, and arrestees were not given an opportunity to submit evidence about their ability to post bond resulting in poor arrestees to remain in jail on minor charges or take “time-served” plea deals to gain their freedom prior to being appointed counsel. 

The case, O’Donnell v. Harris County et al., was filed as a class action suit, on behalf of individuals who allege they were kept in jail due to excessively high cash bail amounts for minor offenses that forced poor arrestees to languish in jail. The suit filed in the U.S. District Court for the Southern District of Texas against Harris County, Texas and the Harris County Sheriff's Department alleged the system violated the Fourteenth Amendment’s Due Process and Equal Protection Clauses by setting bail amounts above the reach of indigent people much longer than those financially able to pay.

The Fifth Circuit largely agreed with the lower court’s decision to place an injunction on the Harris County system because it holds thousands of people behind bars for no other reason than that they are poor referring to the system as a form of  unconstitutional “wealth-based detention.”