The Daily Record: Time to eliminate cash bail in Maryland

Editor’s note: The following commentary appeared on on February 16, 2017.

A landmark decision by the Maryland Court of Appeals that directs court commissioners and district court judges to consider imposing conditions other than cash bail to ensure defendants appear for trial made front page news earlier this month.

Meanwhile, two bills introduced just days later in the Maryland General Assembly, which would put the force of law behind bail reform, haven’t received the same attention.

But the proposals are timely and should be given serious attention by elected state leaders.

One bill seeks to reform the cash bail system specifically in Baltimore City. The other proposal addresses cash bail for defendants in jurisdictions that have pre-trial supervision programs.

As for the unanimous ruling by the state’s highest court, it essentially supports the guidance issued by Maryland Attorney General Brian E. Frosh that it is unconstitutional to hold a defendant in jail if they don’t have the financial resources to make bail.

Effective July 1, district court commissioners and judges will need to determine if there are other means to ensure a defendant appears at trial other than the posting of cash bail if they lack the financial resources to do so.

While the effect of the Court of Appeals ruling is procedural in the judicial system, it is a step in the right direction on an issue that Maryland has been regrettably behind the curve for some time.

In recent years, several bodies, including the Governor’s Commission to Reform Maryland’s Pretrial System, have recommended major changes to Maryland’s cash bail system.

With these recommendations, the recent court ruling and the proposed legislation, a lot of wheels have been moving to shine a light on this vexing issue.

What’s really needed now is for state legislators to enact meaningful cash bail reform in the current session of the Maryland General Assembly to ensure financial status isn’t what lands people behind bars before they have had a trial.

Why? Simply put, the cash bail system for such defendants is unfair and unjust. The problem is particularly acute in Baltimore City.

A look at the numbers

Consider some statistics from a 2016 report by the Abell Foundation, “Finishing the Job: Modernizing Maryland’s Bail System.”

  • In the five Baltimore communities with the most jailed residents — all predominately African-American — the average median income is about $26,000.But the average bail amount set for defendants considered low risk was $51,000. That means most low risk defendants probably could not afford bail and landed in jail.
  • The Abell report goes on to state: “Defendants assessed as low-risk…in Baltimore City had an average bond that was…five times greater than that of Montgomery County, a jurisdiction with a substantially higher median income.”
  • The Commission to Reform Maryland’s Pretrial System found that in the six jurisdictions studied the average bond set for defendants appearing at a bond review hearing was $39,041. Yet two-thirds could not afford to post bail.

Stuck in jail

Defendants who can’t afford bail typically end up in jail awaiting trial — a wait that could last six to nine months. In many situations, when the defendant’s case comes to trial the charges are dismissed or the defendant accepts a plea bargain to a lesser offense with punishment being the time they have served in jail awaiting trial, saddling them with a criminal conviction.

Thus, in effect, particularly in Baltimore City, for many who do not have financial capacity to post a cash bail, merely being charged with a crime equates to arrest, trial, conviction and sentencing.

What happens in the meantime?

Many lose their jobs. Loss of employment has a domino effect on almost anything else of importance: housing, health care insurance, providing for a spouse and children, stress on the family’s stability. That is a heavy price to pay waiting for your day in court.

The Greater Baltimore Committee, which has studied the cash bail issue, has adopted a position that the appropriate public policy approach is to eliminate cash bail in jurisdictions that have pretrial release programs so that defendants who don’t pose a risk to society or flight to avoid trial don’t remain incarcerated merely because of their financial status.

As the GBC’s position on the issue states: “… the current application of Maryland’s cash bail system is plagued with economic and racial disparities disproportionately affecting low income and minorities…”

Baltimore City is one jurisdiction that offers a good match for eliminating cash bail for such defendants as it has a structured system to track defendants called the Pretrial Release Services Program.

In addition to its success in ensuring the appearance of defendants for trial the PRSP is very cost-effective: It costs taxpayers $2.50 per day for an individual in the pre-trial program, compared to $100 per day for incarceration.

There are 10 other jurisdictions in Maryland that have similar pretrial release programs in place, making them good candidates, too, for cash bail elimination.

This is not about being soft on crime. Imposing cash bail may still, and should still, be imposed on defendants charged with serious and violent crimes, repeat offenders, or those that are a risk to themselves or the community.

But it’s time to take a new approach to provide for the pretrial release of non-violent offenders who remain incarcerated pending trial because they lack the financial means to post a cash bail.

Maryland’s current cash bail system is simply too flawed and unjust to allow it to stand any longer.

Donald C. Fry is President and CEO of the Greater Baltimore Committee. He is a frequent contributor to The Daily Record. 

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