More work to be done on bail reform

On Tuesday, Maryland’s highest court took a significant step to improve our state’s criminal justice system. Prompted by a legal opinion in which Attorney General Brian Frosh questioned the constitutionality of current bail procedures, the Court of Appeals unanimously confirmed that defendants should not be held in jail before trial just because they are too poor to post a bond.

The court’s action caused me to recall my first legal job, as an assistant district attorney in Manhattan. One of my duties was to represent the government at arraignment hearings for people arrested on charges ranging from murder to shoplifting. This was where a judge typically set bail — the price of pretrial release. The ability of defendants to pay this price determined whether they would return home to prepare for trial or be locked up in the city’s hellish jail on Rikers Island.

Defendants unable to make bail could spend months, even years, at Rikers awaiting trial or an eventual plea deal that might let them off with time served. They had not yet been found guilty of anything; they were there because they could not afford to pay their way out.

At the time, I felt righteous asking for sky-high bail. We prosecutors insisted on bail because we thought defendants needed a financial incentive to reappear in court — “skin in the game,” as we put it. Looking back, I now see that a system so reliant on money bail was unfair and inefficient.

Two injustices stand out: First, when judges set substantial bail for defendants facing serious charges, they were effectively choosing to deny pretrial release — but they did so without adopting specific factual findings that would make preventive detention constitutionally valid. Second, when judges imposed any bail on defendants facing misdemeanors or other less serious crimes, they put a price tag on freedom to the detriment of those with little or no means to pay.

As dean of the University of Baltimore School of Law for the past five years, I have come to see that the Maryland pretrial justice system suffers from the same flaws as the NewYork system I practiced in years ago.

In Maryland, a defendant’s ability to make bail is the primary determining factor between freedom and incarceration. In courts across the state, poor people charged with minor crimes for which they have not been found guilty are kept behind bars. The experience is devastating, often resulting in the loss of jobs and homes, as well as estrangement from children and other family members. Meanwhile, taxpayers foot the bill for keeping people locked up.

For defendants who manage to post bail, the nonrefundable fee charged by bail bondsmen can be a crushing hardship. Even if the case against them is dismissed, as many cases are, defendants or their families bear a heavy cost. In these ways, Maryland’s current bail system contributes to intergenerational poverty and the syndrome of mass incarceration.

Maryland’s bail scheme has a disproportionate impact on minorities: A 2016 report by the Maryland Office of the Public Defender estimated that African-Americans paid more than two-thirds of the nonrefundable bail premiums charged to Maryland defendants. African-Americans are less likely to be released before trial and their bail amounts are, on average, higher than those imposed on defendants of other races charged with the same crime.

There is a better way. Instead of the old-school reliance on money bail, judges should be equipped with evidence-based, race-neutral tools to help determine who should be held and who should be released. Community-based supervision, including case managers and electronic monitoring, may sometimes be needed. In less serious cases, it may be sufficient to send text-message reminders as court dates approach. Other jurisdictions have achieved these reforms; Maryland should join them.

In October, Attorney General Frosh wrote to legislators that the state’s money bail system is “likely unconstitutional” because of its disparate impact on poor people. Mr. Frosh noted that pretrial detention may be appropriate in serious cases if prosecutors offer sufficient proof that no conditions can ensure the defendant’s return to court. Neither the attorney general nor I advocate the release of dangerous criminals into the community. But neither do we want to see low-income Marylanders penalized just because they are poor.

Now that the Court of Appeals has done its part, I encourage the Maryland General Assembly to build on these critical reforms and strengthen pretrial services throughout the state. Our law school’s Pretrial Justice Clinic will be part of a diverse coalition of advocates seeking legislative action.

Thirty years ago I was part of a defective pretrial justice system in New York. Now I want to lend my voice in support of a better system in Maryland — a system based on public safety, not economic status.