If bail is set, it must be af­ford­able

Baltimore Sun - - COMMENTARY - By Doug Col­bert Mary­land Law School Pro­fes­sor Doug Col­bert (dcol­bert@law.umary­land.edu) su­per­vised the Ac­cess to Jus­tice Clinic’s stu­dent-lawyers, who also contributed to this piece: Abi­gail Be­ich­ler, Amanda Chong, Ava Clay­pool, Brian Healy, Brent Wein­ber

As a court rules com­mit­tee con­sid­ers Fri­day whether to re­quire Mary­land judicial of­fi­cers to set bail prices that de­fen­dants can af­ford, the stu­dent-lawyers I work with, who rep­re­sented a dozen in­car­cer­ated peo­ple charged with non­vi­o­lent crimes, wanted to share their ex­pe­ri­ences.

Money, they have learned, de­cides liberty or jail for too many of Mary­land’s de­fen­dants, a fact that priv­i­leges the wealthy and oth­ers able to pay a bonds­man’s 10 per­cent, non-re­fund­able fee. This has been one of their tough­est lessons: How does one rec­on­cile the law’s com­mit­ment to equal jus­tice with judges who­order ex­ces­sive bail clearly be­yond peo­ple’s fi­nan­cial ca­pa­bil­ity? Mary­land judicial of­fi­cers know that de­fen­dants not pos­ing a flight or safety risk are legally “en­ti­tled” to re­lease on the “least oner­ous” con­di­tions, yet many rely upon money and bonds­men to jail peo­ple with few resources.

With­out the stu­dent-lawyers’ in­ter­ven­tion, the two-week jail stay that 10 of their clients en­dured would have ex­tended to 45 days be­cause none of them could af­ford their bail or a bonds­man’s fee for free­dom. Here are some of their sto­ries: Ron­ald was a 29-year-old fa­ther of four strug­gling with heroin ad­dic­tion; he was charged with tak­ing the dog he re­cently pur­chased from the home where he and his ex-wife shared child care. A com­mis­sioner orig­i­nally set his bail at $10,000, which was later low­ered to $2,500 by a re­view­ing judge in the hopes that would make the $250 bond fee at­tain­able. It did not. With the stu­dent-lawyers’ help, he was even­tu­ally re­leased on a con­di­tion that he ad­dress his drug use. He found a pro­gram, re­united with his ex-wife — who said he was a great dad and not danger­ous, but needed help — and had his charges dis­missed.

An­to­nio spent 16 days be­hind bars on $5,000 bail. Nei­ther he nor any­one he knew could af­ford giv­ing $500 to a bonds­man to buy his free­dom pend­ing trial. An­to­nio had been in and out of the sys­tem as a pris­oner of ad­dic­tion. When he was drug-free, he de­voted him­self to his chil­dren and to his trade as a chef. Af­ter speak­ing at length with him, his stu­dent-lawyer be­came con­vinced An­to­nio was ready to show this same com­mit­ment to bat­tling ad­dic­tion. Iden­ti­fy­ing a struc­tured res­i­dency treat­ment pro­gram, the stu­dent-lawyer con­vinced the judge it was a bet­ter al­ter­na­tive to jail, and An­to­nio has since made valiant strides to­ward be­ing a dad and great chef again.

James was fac­ing trial for a 4-year old “dropsy” drug case with slim ev­i­dence: A po­lice of­fi­cer said he dropped a plas­tic bag con­tain­ing a tiny un­spec­i­fied drug, but James de­nied hav­ing drugs. Stu­dent lawyers ver­i­fied that he lived with his 98-yearold mom and worked on home im­prove­ments. But be­cause he missed court pre­vi­ously, a judge or­dered $3,500 bail. Seventeen days later, one stu­dent-lawyer asked a dif­fer­ent judge to lower his un­af­ford­able bail; that judge went one step fur­ther and made the bond un­se­cured, mean­ing it re­quired no money or pay­ment up front, only reap­pear­ance and su­per­vi­sion. James made good on his prom­ises and the state dropped the charge against him.

Bren­dan, un­em­ployed and the sin­gle par­ent of his young son, was ar­rested at home one morn­ing for fail­ing to ap­pear in court on an un­reg­is­tered dirt bike charge. The judge im­posed an ex­tra­or­di­nary bail in his ab­sence: $5,000 cash only, “de­fen­dant only.” Af­ter a stu­dent-lawyer pre­sented new in­for­ma­tion, the judge granted Bren­dan re­lease with su­per­vi­sion. Bren­dan’s bail, with its added stip­u­la­tions, de­fined ex­ces­sive. Had we not ap­peared, he would have served most of the 90-day max­i­mum — shame­ful for a sys­tem prid­ing it­self on an ac­cused’s pre­sumed in­no­cence.

Gail was given a tres­pass charge for re­main­ing too long in a hospi­tal’s emer­gency area. She stayed in jail on $100 bail un­til her stu­dent-lawyers found the ideal res­i­den­tial treat­ment to ad­dress al­co­holism and de­pres­sion. Gail called last week. “Thank the stu­dents, judge and pre­trial agent for giv­ing me the chance to turn around my life,” she said. That’s some­thing money bail and jail can­not buy.

Since the Ac­cess to Jus­tice Clinic be­gan at the Univer­sity of Mary­land School of Law in 1998, stu­dent-lawyers have re­peat­edly wit­nessed de­tainees los­ing free­dom and homes be­cause they lacked bail money and could not pur­chase liberty from the lu­cra­tive bail bond in­dus­try. While stu­dent rep­re­sen­ta­tion sheds some light on such bail hear­ings, these re­oc­cur­ring tales rarely be­came news items.

The is­sue made head­lines last month, how­ever, af­ter the state’s at­tor­ney gen­eral and the Dis­trict Court’s chief judge re­minded judicial of­fi­cers that they should use money bail spar­ingly and not as a means to in­car­cer­ate de­fen­dants. We urge the ju­di­ciary’s Stand­ing Com­mit­tee on Rules of Prac­tice and Pro­ce­dure to take our ex­pe­ri­ences un­der con­sid­er­a­tion and fol­low suit.

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