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In Maryland jails, release often comes down to who can pay

Law EnforcementTheftJustice SystemCourts and the Judiciary

In a shoebox of a courtroom at Baltimore's central booking facility on a recent day, Judge Nicole Pastore Klein worked swiftly to determine the price of freedom for men and women accused of crimes. Attempting to disarm a police officer: $150,000. Burglary, resisting arrest and drug charges: $100,000. Cocaine possession: $25,000.

Some will go free within the day, while others will likely sit in jail until their day in court. But that distinction often has less to do with the size of their bail than their ability to pay it.

The man charged with trying to disarm a police officer posted his bail that day, even after Pastore Klein cited a "risk to public safety" in setting the amount. The burglary suspect stayed in jail, unable to gather enough money to satisfy a pretrial detention system that — by design — favors defendants of means.

Of the approximately 3,000 people in pretrial detention in Baltimore at any one time, nearly 200 are stuck in jail on bail of less than $5,000 and state lawmakers are now debating whether the long-established practice is the fairest way to decide who stays behind bars. Some defendants can't even post bail of $100.

Supporters say Maryland's bail system works efficiently, allowing defendants who make bail to quickly return to their lives. Many find a bail bond company to put up the money for them — as long as they can pay a fee. That company is responsible for making sure the defendant shows up for trial.

But advocates for change argue that it is unfair to link freedom with finances, and a state task force recently recommended doing away with bail in favor of a system that evaluates only whether a defendant is a danger to the public or a flight risk.

Four states have made similar changes, as has Washington, D.C., where defendants face a judge with just two options: release or confinement. Other states, like Maryland, continue to use bail bondsmen.

Paul B. DeWolfe, who heads Maryland's public defender system and helped craft the task force recommendations, said the existing bail system does nothing to protect the community.

"The cash bail system does one thing: It separates people who have money from those who don't have money," DeWolfe said. "It almost doesn't matter what kind of crime you commit if you have resources to post bail and get out."

The task force was formed by Gov. Martin O'Malley in response to two decisions by the state's highest court, which ruled that Maryland's bail system is unfair because defendants aren't entitled to public defenders when commissioners set their initial bail. (That decision is later reviewed by a judge such as Pastore Klein.)

Faced with the estimated $30 million cost of providing lawyers for thousands of defendants each year, the state is re-examining the entire structure.

A separate state judicial panel set up to examine the issue recommended refining the system but keeping bail as an integral part. Some legislative leaders hope they don't have to change anything; they want the underlying case to come before the court again.

Among the staunchest defenders of the existing system are the companies that keep it running.

Sometimes judges allow defendants to post a percentage of the bail themselves, but typically a bail bond company steps in and agrees to pay the court if the defendant flees. The companies charge a fee that can be up to 10 percent of the bail amount. Defendants don't get that money back even if charges are dropped or they're cleared at trial.

Those in the industry say professional bondsmen do a vital job of ensuring that defendants actually come to court.

Barry Udoff, a Fred Frank Bail Bonds manger who has decades of experience in the business, said bond companies aggressively hunt down fugitives because they're on the hook for the whole amount of the bail.

"When I get a bill in the mail for $75,000, terror strikes through my heart," Udoff said. And the bigger the bail, he said, the harder a bondsman will work to get his man.

Under proposals from the O'Malley task force, the most dangerous defendants would be held in jail until trial; those deemed safe would be released. Others could be released with conditions such as checking in with an agent or agreeing to drug testing and treatment.

Different approaches

Bail wasn't on the table on a recent afternoon in a modern Washington courtroom, where defendants came before Judge Aileen Howze to find out whether they could go free.

One 24-year-old man from Northwest D.C. had been charged with possession of a vial of PCP and a bag containing six grams of cocaine, which police alleged could be sold for $600.

Howze reviewed the case, then ordered the man released pending trial — with a requirement that he undergo drug testing. He was unshackled as he signed paperwork, and walked straight out of the courthouse after providing information to pretrial services officials.

A man accused of stealing from a grocery store was released, as were a man charged with destruction of property and two women accused of assaulting a business owner. Some were ordered to report for supervision once a week.

Those who had committed an offense involving a handgun or whom Howze otherwise deemed dangerous were ordered detained; most would get another hearing in two days.

Supporters of the Maryland system cite the speed at which commissioners can make bail decisions, which gives most low-risk suspects a quick opportunity to get out of jail.

"Commissioners are making good decisions right now," said Baltimore County State's Attorney Scott Shellenberger, a money bail proponent.

The judicial panel recommended keeping bail but scaling back the use of commissioners. Most proceedings would take place before judges, merging the two-step process into a single hearing. Commissioners would only conduct hearings on weekends.

Court officials say those changes would improve the efficiency of the bail system and honor defendants' right to counsel.

Half of all Maryland criminal suspects charged in 2012, the most recent year for which data are available, were quickly released without any conditions, and many more post bail soon after seeing a commissioner.

At a recent bail review hearing in Baltimore, for example, a man arrested that day for theft under $1,000 didn't appear because he had scraped together enough cash to post his $20,000 bond and was released.

Sixty percent of the defendants waiting in the Baltimore jail are held without bail — a common condition for the most violent offenders — but the remaining 40 percent are only there because they can't pay.

On average, 199 people languished in the Baltimore City Detention Center each day of fiscal 2012 on bails of $5,000 or less, according to data from the Department of Public Safety and Correctional Services.

That might be because they cannot come up with the few hundred dollars to buy their freedom, even through financing options are offered by bond companies. Another explanation could be that no company will take their money because they have a history of missing court dates.

In Washington, by contrast, some suspects wait until the next day before they have a chance at release — or longer if they are arrested on the weekend. At any time an estimated 350 people are held on a single charge in jail in Washington, according to Cliff Keenan, the director of the district's pretrial services agency.

Udoff said bondsmen carefully size up potential customers, a sort of free-market evaluation for flight risk.

A 2007 study of felony defendants by the Department of Justice found that those with a bail amount were more likely to show up for court dates than those released without financial conditions. The rates of being arrested while out on release were about the same for both groups, though.

Critics of Maryland's system, though, say it would be better to make decisions using an objective tool rather than relying on the gut feelings of commissioners, judges and bondsmen.

"Money bail is not a rational system," said Douglas Colbert, a law professor at the University of Maryland who has been laboring for over a decade to change the way defendants are treated before trial.

Last summer, for example, a Southeast Baltimore organic honey business owner was charged with 20 counts of drug and firearms charges after police said they found 10 handguns and rifles along with 3 ounces of cocaine, a small amount of marijuana and psychedelic drugs.

Bail for Frantz Walker was set at $1 million — which he was able to post and walk out of Central Booking. He's been able to remain at home and continue running his business while awaiting trial.

He did not response to messages seeking comment and is next due in court in February.

Making changes

Keenan, the Washington pretrial agency head, said the city did away with bondsmen in 1992 as part of a package of changes designed to deal with the violent crime sweeping the city.

The hope was to keep the most dangerous suspects locked up while releasing others. Now, Keenan says, Washington has lower-than-average rates of people failing to appear for court and being rearrested while on the street awaiting trial.

"They're not running wild and committing a lot of [crimes]," he said of the 4,500 or so defendants his agents supervise at any one time.

In Kentucky, courts still place financial conditions on pretrial releases, but the state eliminated the private bail bonds industry in the 1970s. Defendants post bail for themselves and in many instances can receive their money back at the end of their case.

Rep. John Tilley, chairman of Kentucky's House Judiciary Committee, said the state has continued to tinker and has seen benefits after implementing a risk-assessment system last year.

"What we've experienced is really remarkable," he said. "We're actually releasing more people, but public safety has actually been enhanced."

The evaluation tool that the task force recommended in Maryland is being developed by the Houston-based Laura and John Arnold Foundation. It takes into account nine factors — including the defendant's current charge and criminal history — that the foundation says will predict whether suspects are likely to commit another crime while awaiting trial and whether they will show up for court.

A similar tool is used in some Maryland courts, but judges still have wide latitude.

Back in the central booking courtroom, Pastore Klein considered a case in which police turned up drugs while searching an apartment. The defendant had been unable to post the $35,000 bond set by a District Court Commissioner.

"If I lower your bail, are you going to get to court?" Pastore Klein asked the man. He promised that he would, and she agreed to reduce his bail to $25,000, saying, "I'm going to give you some benefit of the doubt."

He posted bail and walked free the next day.

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Bail at Baltimore City Detention Center

Total detainees: 2,972

Bails of $5,000 or less: 72

Lowest Bail Amounts:

$100 (5)

$150 (1)

$250 (4)

$500 (8)

Source: Maryland Department of Public Safety and Correctional Services

Figures from Friday, Jan. 10

Copyright © 2014, The Baltimore Sun
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