Un­con­sti­tu­tional de­ten­tion

Our view: Mary­land judges should stop re­quir­ing cash as a con­di­tion of bail al­to­gether, but un­til then, they should at least set re­al­is­tic prices

Baltimore Sun - - FROM PAGE ONE -

There is only one ac­cept­able pur­pose for re­quir­ing a cash pay­ment as a con­di­tion for bail: as an in­cen­tive for the de­fen­dant to re­turn to court. It’s not meant to pre­vent some­one’s re­lease from jail pend­ing trial, nor to pro­tect the pub­lic good. It is sim­ply the price of free­dom for some­one who is charged with a crime but not con­sid­ered enough of a dan­ger or flight risk to re­quire im­pris­on­ment be­fore ad­ju­di­ca­tion. The out­lay is sup­posed to be large enough to hurt if it’s lost but not so big that some­one can’t pull to­gether the amount.

Yet in Mary­land, par­tic­u­larly in Bal­ti­more, it’s the sole rea­son thou­sands of non­vi­o­lent of­fend­ers sit be­hind bars each year wait­ing for their cases to come to court. In 2015, more than 8,000 poor peo­ple were jailed in the city prior to trial — at a cost to tax­pay­ers of be­tween $100 and $159 per day — be­cause they couldn’t af­ford the cash amounts linked to their re­lease, some­times as lit­tle as a few hun­dred dol­lars. The im­pris­on­ment cost them jobs, re­la­tion­ships and time they’ll never get back.

This week, Mary­land’s at­tor­ney gen­eral said such de­ten­tion is likely un­con­sti­tu­tional. In an opin­ion dated Oct. 11, Brian Frosh wrote that courts would prob­a­bly find that a “ju­di­cial of­fi­cer may not im­pose a fi­nan­cial con­di­tion set solely to de­tain the de­fen­dant” and that such con­di­tions vi­o­late the Fifth and Eighth Amend­ments to the U.S. Con­sti­tu­tion. Mary­land law and court rules also ap­pear to re­quire that a ju­di­cial of­fi­cer “con­duct an in­di­vid­u­al­ized in­quiry into a crim­i­nal de­fen­dant’s abil­ity to pay a fi­nan­cial con­di­tion of pre­trial re­lease” prior to set­ting it, he wrote.

The ball is now in the judiciary’s court (par­don the pun). We would urge the Ju­di­cial Con­fer­ence’s Rules Com­mit­tee to take up the is­sue and set a pol­icy of “in­di­vid­u­al­ized in­quiry” as soon as pos­si­ble, and for ev­ery bail com­mis­sioner and bail re­view judge to im­ple­ment the prac­tice im­me­di­ately. Too many judges, it would seem, are set­ting amounts based on the sever­ity or no­to­ri­ety of the al­leged crime rather than the crim­i­nal. That’s how free­dom for the six po­lice of­fi­cers charged in the death of Fred­die Gray — none of them ex­actly flight risks with vi­o­lent his­to­ries — was priced at be­tween $250,000 and $350,000. If they were re­ally that dan­ger­ous, they shouldn’t have been al­lowed re­lease at all.

That’s the short term. In the longer term, we yet again call for a com­plete system over­haul, as have, in re­cent years, the Jus­tice Pol­icy In­sti­tute, the Abell Foun­da­tion, a state task force and a At­tor­ney Gen­eral Brian Frosh says it’s likely un­con­sti­tu­tional to set bail amounts higher than a de­fen­dant can pay. Mary­land gover­nor’s com­mis­sion. De­fen­dant re­lease should be based on risk, prefer­ably de­ter­mined by an ob­jec­tive tool, with the least oner­ous con­di­tions at­tached to en­sure re­turn to court and the safety of any vic­tims and the pub­lic.

That’s how Washington, D.C., does it. Most of its de­fen­dants — 85 per­cent — are re­leased with con­di­tions that cor­re­spond to their lev­els of risk, such as mon­i­tor­ing, rather than fi­nances. To get there, Mary­land would have to in­vest in im­proved pre­trial re­lease programs and tech­nol­ogy, both of which should pay for them­selves once we’re not un­nec­es­sar­ily jail­ing peo­ple.

The bail bonds in­dus­try, un­der­stand­ably, is not a fan of this ap­proach. High bail amounts are their bread and but­ter, and they’re happy to share the spoils with law­mak­ers in An­napo­lis in the form of cam­paign con­tri­bu­tions. They put up the bail amount for de­fen­dants (which they get back later) in ex­change for a non-re­fund­able fee of about 10 per­cent (though some­times as low as 1 per­cent with prom­is­sory notes sup­pos­edly guar­an­tee­ing the dif­fer­ence). So the higher the bail, the higher the profit. They also con­trib­ute to the prob­lem by al­low­ing de­fen­dants to se­cure re­lease for a frac­tion of the price judges set, lead­ing to even higher prices.

It’s not com­pli­cated. So­ci­ety does bet­ter when peo­ple who don’t need to be jailed aren’t. So let’s just stop.


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