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A path to an overdue end of bail

More than 8,200 people were held on bail in Baltimore last year because they couldn't afford release.

Last year in Baltimore there was a repeat of a decades old outrage that continues to grind on. Over 8,200 largely black and poor citizens — not convicted of any crime, just arrested and presumed innocent — were granted bail, but nevertheless kept in jail because they were too poor to put up the money. Another 7,000-plus were freed on bail but only after collectively paying millions of dollars to bail bondsmen, money they will not get back even if they are ultimately found innocent.

How does this continue year after year? How can punishing someone solely because they are poor by holding them for failure to make bail not be a violation of the U.S. Constitution's commitment to provide all citizens equal protection under the law?

Here is what we know:

1) Those in Baltimore unable to make bail are held on average for over 30 days, sometimes for months — unable to work, to pay rent, to care for their children. This leads to unemployment, eviction, homelessness and failure to make child support payments. A recent University of Maryland study found that of those who could not make bail, 25 percent would lose their job and 40 percent would lose their home.

2) A 2016 study in Philadelphia found that the assessment of money bail for those who can't make bail is a significant, independent cause of convictions and recidivism. Too often those who are innocent who can't make bail plead guilty to get out of jail thus creating all the burdens of a criminal record.

3) The Commission to Reform Maryland's Pretrial System found that bail amounts in Baltimore City are five times higher for comparable crimes than those in Montgomery County.

4) Four states and Washington, D.C., have abolished cash bond. The states include: Illinois, Kentucky, Oregon and Wisconsin. No other developed country in the world has a bail bond industry.

5) Two Maryland task forces (2012 and 2014) have recommended the end of cash bail.

Why does bail exist? If a defendant is dangerous or there is a risk of flight or there is a detainer from another jurisdiction, the defendant should be held without bail. Bail is then set for those remaining defendants who are judged at risk for failure to appear at trial. The unproved assumption is that by setting bail the bail bondsman will insure that the defendant shows up for trial. Surprisingly the judicial system publishes no data on the failure to appear rate of those out on bail.

Fortunately, there is an alternative to cash bail that corrects injustice, saves public money and promotes public safety. The courts today can assign a defendant to pretrial supervision without bail, yet only a small number of defendants are so assigned. This is unfortunate, given that the failure to appear rate of these supervised defendants in Baltimore City is only 6 percent to 7 percent.

Pretrial supervision is also a far more cost effective strategy than cash bail. A report by the Justice Policy Institute in 2010 found that Maryland spent over $150 million on the Baltimore City Detention Center and Central Booking, a cost then of between $100 and $159 a day for those detained. In contrast, pretrial supervision costs $2.50 a day. So bail can be ended, and the money saved can be used to fund pretrial with savings left over to fund drug treatment and job training for those supervised defendants.

If a person is dangerous they should not be released on bail. Yet our current system allows those defendants who are granted bail and who have access to money to purchase their pretrial release, regardless of the risk they may pose to public safety. The only people who benefit from requiring bail are the bail bondsmen who receive a percentage of the bail amount as a fee.

What can be done about this miscarriage of justice? Bail should be ended by the state, beginning in the city. Those who would otherwise be released on bail should be referred to pretrial supervision. This requires an increase in the capacity of pretrial supervision. Baltimore City is unique among the state's subdivisions in having its jail and pretrial supervision funded by and operated by the State of Maryland. So a case can be made for ending bail in Baltimore city if the rest of the state is not sympathetic. The city delegation to the General Assembly should introduce such long overdue legislation at the next session.

Robert C. Embry, Jr. is president of the Abell Foundation. His email is embry@abell.org.

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