The county’s lawyer defended this policy by arguing
that poor defendants — who are disproportionately black and Latino — stay in jail not because they can’t buy their way out but because they “want” to be there, especially “if it’s a cold week.” Judge Rosenthal called this despicable claim “uncomfortably reminiscent of the historical argument that used to be made that people enjoyed slavery.”
The real explanation is straightforward: As cash bail has fueled a politically influential, multibillion-dollar industry, courts are relying on it more,
and people who can’t afford it are getting locked up at ever greater rates.
In a 193-page ruling that followed a lengthy trial, the judge, Lee Rosenthal, said
that money bail should be used for people charged with misdemeanors “only in the narrowest of cases,” and even then only when there are strong safeguards in place to ensure that defendants receive due process before being locked up.
“In our society,” the Supreme Court has held, “liberty is the norm,
and detention prior to trial or without trial is the carefully limited exception.” Yet across America, poor people like Ms. ODonnell are held in jail for days, weeks or even months solely because they don’t have the cash to bail themselves out.
And though the whole point of bail is to ensure that people show up to court, Judge Rosenthal found no clear evidence
that secured money bail is any more effective at this — in fact, it could be worse — than methods that don’t depend on the size of someone’s bank account.
Lives fall apart after even a few days in jail — whether because of job or housing loss or having children taken away — leading to instability
that makes it more likely people will turn to crime upon their release.
Harris County, which includes Houston and has the third-largest jail system in the country, fails on both counts, Judge Rosenthal said.
As a result, poor people charged with a misdemeanor end up stuck behind bars, while people with money who are charged with the same offense walk free.