Friday's decision by the Maryland judiciary's rules committee to recommend a change in how judges set bail is being opposed by the bail bonds industry as a mortal threat and by some lawmakers as a usurpation of legislative power. But as far as reforms go to this generally irrational and unjust feature of our criminal justice system, the one Maryland's Court of Appeals will now consider is quite minor. We're not talking about throwing out the cash bail system entirely, though we are certainly supportive of moves in that direction. All that's at stake is whether judges can intentionally set bail at levels they know defendants can't pay.
What about that doesn't make sense? The idea of the cash bail system, dubious though it may be, is that putting a defendant on the hook for a meaningful amount of money will make him or her more likely to show up for trial and less likely to be a danger to the community in the meantime. It is not supposed to be a backdoor means of keeping people locked up, and it is certainly not supposed to be an escape valve for the wealthy.
Retired judge Alan M. Wilner, who chairs the rules committee, wrote in a memo to his colleagues that the proposed change merely clarifies three principles already established in Maryland judicial rules. First, pretrial defendants should be released whenever possible. People are innocent until they are proven guilty, so we should not be punishing them before trial by robbing them of their liberty unless it is absolutely essential. Second, they should be "released on the least onerous conditions that will reasonably ensure their appearance in court and public safety." And finally, money bail is "permissible to ensure appearance, but only when no non-financial condition will suffice to achieve the desired objective and never for the purpose of placating public opinion, punishing the defendant, or, by setting it at an amount the defendant can't afford, as a ruse to ensure that the defendant will, in fact, remain incarcerated."
Unfortunately, we know that under the current system, the "ruse" Mr. Wilner describes happens all the time. In September, for example, a Baltimore Circuit Court judge set a $750,000 bail for a woman accused of stabbing her boyfriend. The judge was recorded as saying to a clerk, "She can't make that bail. She's not employed, she's got six kids, she doesn't seem to have the assets. It's not going to happen." The judge said she was "throwing her a bone" to set bail at all.
What purpose does that serve? If the defendant is really a danger, say so and keep her in jail pending trial. (In fact, another judge who heard an appeal of her bail hearing said just that and ordered her held.) What if the judge had been wrong about the woman's ability to pay — if, say, she had friends who could scrape together the $75,000 necessary to pay a bail bondsman, or maybe just $7,500 up-front with promissory notes to cover the rest? Would the community really be safe just because the defendant put up some cash?
Something just like that played out in the case of Heather Cook, the former Episcopal bishop who eventually pleaded guilty to automobile manslaughter and other charges in connection with her drunk-driving killing of bicyclist Thomas Palermo in North Baltimore. The judge who considered whether to grant bail said she had shown a "reckless and careless indifference to human life" and added that she could not "trust her judgment if released." Given that, did she order Ms. Cook held before trial? No, she set bail at $2.5 million — which Ms. Cook posted three days later, with the help of a bail bondsman and a friend who agreed to pay the $250,000 fee over the next 17 years.
Meanwhile, though, thousands of other defendants without such resources are held in jail awaiting trial, often with disastrous consequences for their families, even though many will never be found guilty of a crime. There are alternatives. The Maryland Office of the Public Defender issued a report this month detailing the high cost of bail for poor communities and African Americans in particular, and it analyzed data from Baltimore City's district and circuit courts to show that defendants released on an unsecured bond — that is, a promise to pay a penalty if they don't show up for court rather than an up-front charge — fail to appear at a slightly lower rate than those released on a traditional, secured bond.
The legislature should play a role in moving Maryland away from cash bail altogether, but in the meantime, the proposal before the Court of Appeals is a step the judiciary can and should take on its own. If defendants are too dangerous to be on the streets or too big a risk to flee before trail, they should be held in jail. If not, they should have the opportunity to gain their freedom regardless of their financial circumstances. Those have always been the principles underlying Maryland's system. The judiciary just needs to make sure they are followed in practice.