Wealth shouldn’t de­ter­mine free­dom

Our view: Court of Ap­peals should stop judges from set­ting bail de­fen­dants can’t pay

Baltimore Sun - - FROM PAGE ONE -

Fri­day’s de­ci­sion by the Mary­land ju­di­ciary’s rules com­mit­tee to rec­om­mend a change in how judges set bail is be­ing op­posed by the bail bonds in­dus­try as a mor­tal threat and by some law­mak­ers as a usurpa­tion of leg­isla­tive power. But as far as re­forms go to this gen­er­ally ir­ra­tional and un­just fea­ture of our crim­i­nal jus­tice sys­tem, the one Mary­land’s Court of Ap­peals will now con­sider is quite mi­nor. We’re not talk­ing about throw­ing out the cash bail sys­tem en­tirely, though we are cer­tainly sup­port­ive of moves in that di­rec­tion. All that’s at stake is whether judges can in­ten­tion­ally set bail at lev­els they know de­fen­dants can’t pay.

The idea of the cash bail sys­tem is that putting a de­fen­dant on the hook for a mean­ing­ful amount of money will make him or her more likely to show up for trial and less likely to be a dan­ger to the com­mu­nity in the mean­time. It is not sup­posed to be a back­door means of keep­ing peo­ple locked up, and it is cer­tainly not sup­posed to be an es­cape valve for the wealthy.

Re­tired judge Alan M. Wilner, who chairs the rules com­mit­tee, wrote in a mem­oto his col­leagues that the pro­posed change merely clar­i­fies three prin­ci­ples al­ready es­tab­lished in Mary­land ju­di­cial rules. First, pre­trial de­fen­dants should be re­leased when­ever pos­si­ble. Peo­ple are in­no­cent un­til they are proved guilty, so we should not be pun­ish­ing them be­fore trial by rob­bing them of their lib­erty un­less it is ab­so­lutely es­sen­tial. Sec­ond, they should be “re­leased on the least oner­ous con­di­tions that will rea­son­ably en­sure their ap­pear­ance in court and pub­lic safety.” And fi­nally, money bail is “per­mis­si­ble ... only when no non-fi­nan­cial con­di­tion will suf­fice to achieve the de­sired ob­jec­tive and never for the pur­pose of pla­cat­ing pub­lic opin­ion, pun­ish­ing the de­fen­dant, or, by set­ting it at an amount the de­fen­dant can’t af­ford, as a ruse to en­sure that the de­fen­dant will, in fact, re­main in­car­cer­ated.”

Un­for­tu­nately, we know that un­der the cur­rent sys­tem, the “ruse” Mr. Wilner de­scribes hap­pens all the time. In Septem­ber, for ex­am­ple, a Bal­ti­more cir­cuit judge set a $750,000 bail for a wo­man ac­cused of stab­bing her boyfriend. The judge was recorded as say­ing to a clerk, “She can’t makethat bail. She’s not em­ployed, she’s got six kids, she doesn’t seem to have the as­sets. It’s not go­ing to hap­pen.” The­judge said she was “throw­ing her a bone” to set bail at all.

What pur­pose does that serve? If the de­fen­dant is re­ally a dan­ger, say so and keep her in jail pend­ing trial. (In fact, another judge who heard an ap­peal of her bail hear­ing said just that and or­dered her held.) What if the judge had been wrong about the wo­man’s abil­ity to pay — if, say, she had friends who could scrape to­gether the $75,000 nec­es­sary to pay a bail bonds­man, or maybe just $7,500 up-front with prom­is­sory notes to cover the rest? Would the com­mu­nity re­ally be safe just be­cause the de­fen­dant put up some cash?

Some­thing just like that played out in the case of Heather Cook, the for­mer Epis­co­pal bishop who even­tu­ally pleaded guilty to au­to­mo­bile man­slaugh­ter and other charges in con­nec­tion with her drunken-driv­ing killing of bi­cy­clist Thomas Palermo in North Bal­ti­more. The judge who con­sid­ered whether to grant bail said she had shown a “reck­less and care­less in­dif­fer­ence to hu­man life” and added that she could not “trust her judg­ment if re­leased.” Given that, did she or­der Ms. Cook held be­fore trial? No, she set bail at $2.5 mil­lion — which Ms. Cook posted three days later, with the help of a bail bonds­man and a friend who agreed to pay the $250,000 fee over the next 17 years.

Mean­while, though, thou­sands of other de­fen­dants with­out such re­sources are held in jail await­ing trial, of­ten with dis­as­trous con­se­quences for their fam­i­lies, even though many will never be found guilty of a crime. There are al­ter­na­tives. The Mary­land Of­fice of the Pub­lic De­fender is­sued a re­port this month de­tail­ing the high cost of bail for poor com­mu­ni­ties and African-Amer­i­cans in par­tic­u­lar, and it an­a­lyzed data from Bal­ti­more City’s district and cir­cuit courts to show that de­fen­dants re­leased on an un­se­cured bond — that is, a prom­ise to pay a penalty if they don’t show up for court rather than an up-front charge — fail to ap­pear at a slightly lower rate than those re­leased on a tra­di­tional, se­cured bond.

The leg­is­la­ture should play a role in mov­ing Mary­land away from cash bail al­to­gether, but in the mean­time, the pro­posal be­fore the Court of Ap­peals is a step the ju­di­ciary can and should take on its own. If de­fen­dants are too dan­ger­ous to be on the streets or too big a risk to flee be­fore trail, they should be held in jail. If not, they should have the op­por­tu­nity to gain their free­dom re­gard­less of their fi­nan­cial cir­cum­stances. Those have al­ways been the prin­ci­ples un­der­ly­ing Mary­land’s sys­tem. The ju­di­ciary just needs to make sure they are fol­lowed in prac­tice.

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