Costs and Benefits of Due Process
In 2016, Maranda ODonnell was arrested in Harris County, Texas, which includes the city of Houston, for driving with a suspended license to her mother’s house in order to pick up her 4-year-old daughter. ODonnell’s bail was set according to a fixed written schedule that the judicial officers had to follow in Harris County, Texas at the time. Like hundreds of thousands of others, she did not have a public defender. ODonnell lived “paycheck to paycheck,” said she was “worried about whether [her] job will still be there when I get out,” and simply could not afford to “buy [her] release from jail.” At a brief hearing, the hearing officer set cash bail at $2,500 more than she could afford—and she was jailed.
ODonnell joined a federal civil rights lawsuit challenging these bail practices as an unfair due process violation. In 2017, federal judge Lee Rosenthal found the practices unconstitutional, relying on a detailed set of factual findings, and concluded that Harris County’s misdemeanor bail policy violated the Due Process Clause. In 2019, the parties entered a Consent Decree, the first of its kind in the country, which required that most people arrested for misdemeanors be promptly released without having to pay for their freedom, and that more due process, including discovery and public defenders, be provided at bail hearings.
Since March 2020, I have served as the court-appointed monitor for the settlement, along with my colleagues and friends, law professor Sandra Guerra Thompson from the University of Houston Law Center, economics professor Songman Kang from Sungkyunkwan University in Seoul, Korea, and political scientist Dottie Carmichael from Texas A&M University. As monitors, we closely studied the bail reforms in Harris County.
What we learned surprised us. We
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