Another bail failure

Editorial: Maryland's pretrial release program still needs reform, despite rule change.

Baltimore District Court Judge Nicole Taylor made a bad call earlier this month, and now, an 18-year-old city man is dead from a police shooting, and she’s become the prime example for why bail reform is necessary in Maryland — and why a procedural rules change announced last week doesn’t go far enough.

In what was perhaps an act of misguided mercy — we can’t say for sure because she’s not commenting — Judge Taylor released 18-year-old Curtis Deal, who had been arrested Feb. 3 on gun and drug charges, on a $250,000 unsecured “no-money-down” bond and strict curfew rules, so, she said in court, he could “go to school and not be in jail pending this trial.” She apparently didn’t put much stock in the fact that Deal was already out on $100,000 secured bond from a Jan. 4th gun arrest and on his own personal recognizance from a Jan. 30th drug arrest, making the arrest she was considering his third in 31 days.

He was cut loose Feb. 6. By 3 p.m. the next day, Deal had already violated conditions of his release by missing his 1 p.m. curfew and, police video confirms, possessing a firearm, which ultimately led to his being shot down by officers that day.

Here’s where Judge Taylor went wrong: 1.) She made the mistake of assuming high bails can somehow protect the public, and 2.) she improperly assessed Deal’s ability to comply with her conditions and the degree of risk he posed to the community.

A Maryland Court of Appeals ruling last week goes a long way toward fixing the first problem but doesn’t do a thing about the second. The court approved a new procedural rule that clarifies how judicial officers should have been handling the pretrial release or detention of defendants all along, that is: incarcerating without bail those defendants who are too dangerous to be released or who are serious flight risks, and releasing those who aren’t under reasonable conditions to help ensure their return to court and avoidance of criminal activity.

Bail reform isn’t just about making sure we don’t jail people before trial unnecessarily, it’s also about making sure we do keep the most dangerous defendants in custody. Many judges and bail commissioners have a bad habit of putting dollar figures on criminal charges as a matter of routine, which means those who can afford to pay buy their way out of jail despite the risks they pose, and those who can’t languish. The has had the effect of keeping poor, low-level offenders behind bars on relatively small amounts and releasing higher stakes defendants who can pull together massive amounts of cash.

The new rule explicitly states that “financial conditions of release are appropriate only to ensure the appearance of the defendant and may not be imposed solely to prevent future criminal conduct during the pretrial period or to protect the safety of any person or the community; nor may they be imposed to punish the defendant or to placate public opinion.” It adds later that cash conditions should also be affordable for the individual, which should mean taxpayers end up footing the bill for fewer homeless folks stuck in jail on a $50 bond.

That’s a good thing, but don’t kid yourself into thinking it’s real reform; that will require action on the part of the legislature as well as the judiciary. To facilitate safe releases of defendants before trial, lawmakers should ensure that pretrial service programs are implemented and funded in all of Maryland’s 24 jurisdictions to help vet defendants and actually supervise them when released to the community. A relatively small investment here can return big savings in reduced incarceration costs. St. Mary’s County, for example, spent $200,000 to implement a pretrial services program in late 2015 and saved $400,000 in the first year, Court of Appeals Judge Alan Wilner said in an interview.

And the legislature should again consider requiring the use of a uniform risk assessment tool throughout Maryland to gauge a defendant’s danger level without relying so much on the subjectivity of individual judicial officers. Opponents in the legislature have railed against the idea of a computer making such decisions. Well, it’s hard to imagine a scenario where Deal’s details could be entered into a computer program to have it spit out a recommendation that he be released on an unsecured bond. And while they’re at it, lawmakers should at least give consideration to a bill in the works that would eliminate cash bail in Maryland, as other jurisdictions have done to their benefit. We support the concept but recognize it has little chance of gaining momentum this year amid the pushback from the bail bonds industry.

Of course real bail reform will require a cultural shift in the way we think about criminal justice. And it will take vigilance. Judges and bail commissioners are set to undergo rigorous training on the new rules, and their supervisors will be watching for compliance, Judge Wilner said.

But they were supposed to be watching before the rule change, too. Which means it’s up to us to pay attention and hold them all accountable.

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