In making a rule change that went into effect this summer, the Court of Appeals of Maryland deliberately intended to reform the state’s pretrial detention system by limiting the use of cash bail and its frequent effect: incarcerating non-violent defendants solely because they can’t afford the price for release while they await trial.
Yet our experience as student-lawyers in our law school’s Access to Justice Clinic shows that people charged with non-violent offenses continue to be held improperly. This semester, each of the clinic’s 16 incarcerated clients either could not afford bail or were unfairly denied bail on non-violent, misdemeanor charges. This included Kevin, 18, who was held on $200 bail for a $15 theft; Tina, 52, who was held on a $300 bond on drug charges; and George, 67, who was held on a $750 bond also on drug possession charges.
The new rule requires judicial officers to identify the least onerous conditions of release, to give preference to non-financial conditions, and to weigh the individual’s income and resources when making a decision, It makes abundantly clear that imposing money bail is appropriate only to ensure a defendant’s return to court and not to deny their release. Too often, however, not enough consideration is given to an individual’s finances when calculating a “reasonable” bail amount, so poor and low-income defendants continue to be denied liberty simply because they cannot pay.
How long must a person sit in jail while every other aspect of their life is on hold or sacrificed before it becomes obvious that their detention directly contradicts court rules?
Consider our client Rashad, who was held on $25,000 bail for driving without a license Nothing about Rashad or his case indicated he was a flight risk or danger. He had never missed court, and he maintained good standing with his probation officer from a prior case. He looked forward to starting college and eagerly awaited his first child’s birth with his long-time girlfriend. We successfully persuaded a judge to release Rashad on his own recognizance. Currently, he is enrolled in a re-entry program that provides training and workforce placement opportunities for ex-offenders.
Defendants are rarely given this opportunity to “appeal” their bail after it has been set by a commissioner and already reviewed once by a judge. It is not required by court rules, but the practice began 19 years ago at the initiation of the city's administrative judge to address jail overcrowding. Defendants lucky enough to have their cases passed along to student-attorneys find us eager to take them on. We investigate our clients’ circumstances and present the court with new information in an effort to obtain a bail “re-review” hearing, which itself takes five days — a long time when you’re stranded in jail, but far better than the alternative, which is to wait a month or more for the next court appearance.
Another rule change could solve that problem by mandating that jailed defendants return to court in their cases within five days of arrest; this would result in many having their fundamental right to liberty restored pending trial. That’s the procedure in New York, and the benefits are far-reaching. Early assessment of a case by prosecutors means they will contact crime victims sooner, evaluate evidence sooner and inform judges sooner which cases they plan to prosecute and which they decline. Getting cases back to court quickly empowers judges to review defendants’ bail status and make appropriate changes. The weeding-out process within the first week results in reduced court dockets that focus on serious, violent crimes. Taxpayers save the expense of unnecessary pretrial incarceration.
Creating a rule-based mechanism for reviewing prior bail decisions and cases within days of the post-arrest bail determination period would also provide a useful remedy for examining the growing population of "no bail" detainees when they do not represent a clear danger or flight risk. Baltimore’s judicial officers denied bail to about 1,600 of the jail’s current 2,400 pretrial detainees, a dramatic increase from a year ago. Two of our clients who were denied bail on non-violent charges were later released after we provided judges with verified new information.
Decreasing the number of people who find their most fundamental liberty restrained without having been convicted of a crime should be reason enough to return detainees to court promptly for a much-needed judicial review. But for those who need further convincing, there’s this: The cost of incarceration pending trial goes beyond the individual defendant; it is measured in taxpayer dollars, loss of confidence in the fairness of the judicial system and the destabilization of families and communities.
Unjust detention hurts Marylanders of all stripes, and its elimination should be championed by all.
Rachel Brown, Christie Chung and Julia Sine are students in the Access to Justice Clinic, a one-semester experiential course at the University of Maryland law school where students represent clients under Professor Doug Colbert’s supervision (DColbert@law.umaryland.edu). Clinic student Brent Weinberg also contributed to this article.