The new Maryland judiciary rule reforming the use of money bail in the state's courts has led to two very different responses in the General Assembly. Legislation supported by critics of a system that historically kept thousands of people in jail based solely on their inability to afford bail, seeks to codify the judiciary's rule and ensure that every jurisdiction offers the kind of pretrial services that can do as good a job or better than cash bail to ensure that defendants' show up in court.
The other approach, supported by the bail bonds industry, sounds good at first. Its proponents cast it as part of the effort to "modernize" the use of bail in Maryland and to ensure that the state meets a high burden of proof before determining a defendant is a flight risk or a public safety threat and thus must be held before trial. It codifies the principle that high bail cannot be used as punishment or to placate public opinion. Both Paul Clement, who served as the solicitor general during the George W. Bush administration, and J. Howard Henderson, president of the Greater Baltimore Urban League, testified on its behalf, with the latter asserting that it would have no negative effect on minorities.
But in key respects, it amounts to a backpedaling on the reforms the Court of Appeals adopted, which are set to go into effect this summer. It jettisons the concept that judges and court commissioners use the least onerous means to make sure defendants show up in court and pose no risk to the community. It requires judges and detention officials to review jail populations to determine whether people are being held solely because of their inability to pay, but it does not enshrine in law Attorney General Brian E. Frosh's conclusion that such detention is unconstitutional. And it perpetuates the idea that cash bail is an effective means to protect public safety rather than merely to encourage a defendant to return to court.
The issue with Maryland's bail system is twofold. On the one hand, it leads to poor people languishing in jail while those with means are able to get out pending trial — often irrespective of the seriousness of their alleged crimes or propensity to flee. On the other, it sometimes leads to judges releasing defendants who do pose a public safety risk on the flawed assumption that a high bail will prevent them from committing a crime of violence — as if a criminal would decide not to intimidate or harm a witness because of the risk of losing a bail amount.
There is evidence that judges are already addressing both problems in response to Mr. Frosh's advice. The Sun's Kevin Rector reported last month that the use of cash bail has declined, from 42 percent of cases statewide in July to 30 percent in January, while the percentage of defendants held without bail went up from 9 percent to 16 percent and the percentage released on personal recognizance or unsecured bond went up from 48 percent to 52 percent. In general, that suggests the system is moving in the right direction.
Ultimately, we believe the public would best be served by the elimination of cash bail altogether. It accomplishes nothing that can't be achieved through other means, such as enhanced monitoring or, in circumstances when it's really necessary, pre-trial detention. Such a system should be accompanied by adoption of a well tested and validated risk assessment tool to help court commissioners and judges determine whether and under what circumstances defendants should be released before trial. Other jurisdictions — notably, Washington, D.C. — have long histories of successful pre-trial management without cash bail.
Given the clout of the bail bonds industry in Annapolis, we don't expect Maryland to move in that direction soon. But the judiciary's new rules provide a solid foundation for reform, and they should be allowed to work. Even if legislators aren't willing to pass new laws codifying and strengthening the courts' new rules, we hope they will at least not gut them in the guise of "modernizing" the system.