Nearly half a million people crowding the nation's regional jails — two thirds of the jail population — are awaiting trial. Many of them are poor people of color incarcerated on non-violent, non-felony charges for an average of two weeks because they can't afford the price of freedom: the going bail rate for their alleged crime.
For some, the time in lock-up means lost jobs and homes. Their children may have to move in with a non-parent, or their medical care may be interrupted. All this, despite a presumption of innocence.
If that doesn't move you, consider this: It costs the country's taxpayers $9 billion to detain defendants before trial — all defendants, from the accused murderers to the drug users. Advocates say as many as a quarter of the latter variety could be set free before their court dates, which often result in sentences of probation, without posing a public risk, relieving cramped quarters and potentially saving billions.
Maryland has an opportunity to lead the way in reforming the system. A state task force is looking into the rights of defendants before trial, and its members recently received a recommendation for doing away with the well known and widely used "money bail" approach, in which court commissioners and judges attach dollar figures to various offenses.
It appears a radical suggestion, given the country's long history with the asset-based system. Moving to a method rooted solely in risk assessment — the risk a defendant wouldn't return to court and the risk that he or she would pose a danger to the public — would destroy the lucrative, for-profit bail-bonds industry. It would compel both the development of objective risk measures and the expansion of programs to supervise released defendants.
Prosecutors, who know that the longer defendants sit in jail, the more likely they are to enter a plea agreement, and the powerful bail bonds industry, which takes in more than $100 million in Maryland each year, are likely to push back hard against the suggestion.
But it, along with less-sweeping changes — such as issuing citations for minor crimes rather than arresting people and eliminating the third-party bail-bonds industry, as four other states have done — deserve serious consideration.
The current system often seems arbitrary and skewed to favor the well off. A businessman accused of being an armed drug trafficker quickly made his $1-million bail by posting a bond earlier this year, while a serial dine-and-dasher was stuck in Baltimore Central Booking on $1,500 bail last month.
A man accused of robbing people for their iPhones was given a $75,000 bail in Baltimore County in 2012, which was more than twice the $35,000 bail set in the city in 2004 for another man accused of attempted murder. Each of those defendants was accused of committing other crimes while free on bail, suggesting that they didn't become safer to the public simply because they could afford the freedom fee.
The price of release is often far less than the bail a judge sets, anyway.
Bail bonds businesses can accept responsibility for a person's bail in exchange for a fee, a very American arrangement that's illegal in most of the world. They're supposed to charge at least 10 percent of the bail amount, but they often accept far less — under 1 percent in some cases — as a "down payment" followed by promissory notes for the rest, which may or may not ever be collected. Whether they take on a defendant's business is up to them, giving bondsmen the ultimate say in someone's liberty in many cases.
And when defendants who have bonded out fail to show up in court, the state is often lax in collecting the full bail amount from the bond businesses, which can choose whether to hunt down the bail jumper. One company that insures bail bonds filed a lawsuit against Maryland's district courts this year, claiming they have thrown away millions by not enforcing bail rules.
Bail bonds businesses say they provide a valuable service by helping defendants get out of jail before trial and ensuring that they return to court. They also say they provide thousands of jobs. But if those jobs come at the price of justice, the state doesn't need them.
Maryland law requires the release of defendants before trial under the least onerous conditions — which could include home detention and monitoring — to ensure their return to court and the public's safety. If they can't safely be released, they simply shouldn't be released. And if cash or the threat of property loss is required to guarantee their return, the condition would have more teeth if the full bail amount, rather than a bonded fraction, were required.
The country's last major bail reform effort occurred nearly half a century ago. It's time we took another look at the system, starting here, in our backyard.
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