The problem with cash bail

Op-ed: Support a bill eliminating federal criminal justice funds for states that rely upon cash bail systems.

A half a century ago President Lyndon B. Johnson signed into law a bail reform act that was supposed to make release of people accused of crimes the rule and not the exception. "Because of the bail system, the scales of justice have been weighted for almost two centuries not with fact, nor law, nor mercy. They have been weighted with money," Johnson said.

But today, the system still favors the rich, who can afford to buy their way out of jail pending trial. The majority of people accused of crimes in Baltimore are poor; we at the Office of the Public Defender represent the bulk of these individuals and regularly watch judges set money bail amounts that far exceed what our clients can afford to pay. Our clients stay incarcerated while their cases continue through the criminal justice system because the scales have been weighted against them.

If you had the time to attend a bail review docket — held every morning in Wabash District Court in northwest Baltimore and at Patapsco District Court in south Baltimore — you would immediately notice two injustices, first, that those accused of crimes are not physically present at this critical hearing. They instead can only participate by video monitor from the jail, which robs them of any opportunity to consult privately with an attorney; defendants are forced to speak to the entire court on the video monitor if they wish to say anything. (There does exist a private booth at the Central Booking and Intake Facility to allow for confidential phone conversations between some defendants and their attorneys during bail review. The state, however, has not established a functional private phone line from the jail to the court to allow for such communication).

Second, you would see very little attention paid to public defender arguments for conditions of release that are unrelated to money, such as intensive supervision in the community or requiring an accused to access needed services while his or her case continues in the court. Maryland Rule 4-216 requires the judge to consider "any information presented by the defendant or the defendant's attorney" when assessing conditions of pre-trial release. Yet, it is a rarity, really an oddity, for a judge to consider the relative wealth of the defendant when setting bail, despite our pleas. It is an obvious truism that if you can't post any amount of bail to secure your freedom, it doesn't matter how high the bail is set. You will be presumed innocent and incarcerated while your case weaves through the court system, and it is, of course, the taxpayers who pay for your stay at a jail — a misuse of important governmental funds.

Individuals who are employed at the time of their arrest often lose their jobs if they cannot afford to post bail, while waiting 30 or 60 days for a court date. When a family has a loved one incarcerated, they lose a caretaker, they lose income and they lose stability. When poor people are forced to pull together enough money to pay a bail bondsman to gain the release of a family member, it is often at the expense of rent or utilities or other necessities. Family members are often left indebted to bail bondsmen long after a criminal case has been resolved and their family member has been released. We should have a bail system where the relative wealth of the accused is irrelevant and conditions of release are unrelated to money. Instead, we have a system that exacerbates the struggles of poor people.

In February, Congressman Ted W. Lieu of California introduced House Bill 4611 which is presently pending before a subcommittee of the judiciary committee of the House of Representatives in Washington. The bill prohibits states from receiving important criminal justice funding from the federal government unless the state eliminates money bail as a condition of pre-trial release. It is long overdue.

If the American ethos of fairness means anything in the pre-trial release context, it means that everyone, independent of their wealth, should be treated equally. Sadly, in Baltimore, and other places, poor defendants have little or no chance. We can and need to do better. Supporting Congressman Lieu's bill is a good place to start.

David Walsh-Little is the chief attorney of the Felony Trial Division of the Office of the Public Defender in Baltimore; his email is DWalsh-Little@opd.state.md.us. The ideas expressed herein his alone and do no reflect any official policy of the Maryland Office of the Public Defender.

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