Maryland's current legislative session offered lawmakers the opportunity to partner with the state's judiciary to reduce racial disparities in the state's pretrial system while improving public safety. Predictably, the for-profit bail bonds industry, and the insurance companies that underwrite them, have done everything possible to keep this from happening. Justice, however, demands that lawmakers see past all the noise and do what is safe and just for all Marylanders — especially Marylanders of color, who suffer disproportionately under the current system.
The U.S. Supreme Court has described the pretrial process as "perhaps the most critical period" of criminal legal proceedings. Only recently, however, have states begun to scrutinize racial disparities at this stage of the justice process. Nationally, African Americans are more than 2 ½ times more likely to be arrested than white Americans. They are also more likely to be detained in jail than whites who are charged with the exact same crimes, while white arrestees are twice as likely to be released on their own recognizance. When money bail is set, it is, on average, 35 percent higher for African-American men than white men and 19 percent higher for Hispanic men. Here in Maryland, the mean bail amount for African Americans is 45 percent higher than that of whites at initial appearance, and 51 percent higher than that of whites at the bail review hearing.
This fall, Maryland's attorney general examined the state's money bail practices and concluded that they are likely unconstitutional because they allow judicial officers to set bail at amounts that poor people cannot pay. The state's highest court, the Maryland Court of Appeals, responded by amending court rules to prevent judges from setting unaffordable bail amounts. This was a great step forward for poor and working class Marylanders. Because race and poverty are correlated, the rule change is also a strong step toward ensuring that Maryland's pretrial system does not continue to disproportionately disadvantage people of color.
Logically, Maryland lawmakers should now be focused on building upon and strengthening what the court has accomplished. One proposal before the General Assembly would have upheld the new court rule and provided additional tools judicial officers need to reduce racial disparities and maintain public safety during the pretrial process. Another proposal would have gone even further and completely eliminated cash bail in jurisdictions that offer pretrial services as an alternative.
In stark opposition, several bills proposed by the bail bonds industry are specifically designed to undo the court rule change. The bail bonds industry has used its deep pockets, and the access money provides, to win support for its proposals. To an untrained eye, their bills look like reform, but a closer read reveals they are nothing more than Trojan horses that would maintain the status quo and perpetuate the racial disparities that currently exist in the system.
Some lawmakers and civil rights organizations, who typically stand up for racial justice, have been captured or confused by the industry's high-paid lobbyists and feigned interest in addressing structural racism. Standing strong against the glitz and misinformation, however, is a growing community of grassroots leaders, advocates and concerned voters who understand what is at stake and are committed to doing better. Indeed, according to a 2015 poll of likely Maryland voters, roughly 70 percent of Marylanders support moving Maryland from a money-based system to one that doesn't favor the wealthy, is better at identifying those who pose a risk to public safety and provides fair alternatives to jail while someone awaits his or her trial.
Given such strong public support — which holds across political and racial lines — it is unacceptable for state lawmakers to take any action that undoes the court rule and sends Maryland backward. Rather, it is incumbent upon lawmakers to support the interests of the people of Maryland, not the agenda of the for-profit bail bond industry, to move Maryland forward toward a system that is safer and more racially just.
Tara Huffman (firstname.lastname@example.org) is a Maryland resident and director with the Open Society Policy Center in Washington, D.C. The Open Society Policy Center is a member of the Coalition for a Safe and Just Maryland.