Preset bail unfair to low-income defendants

If you miss a court date, the judge could order you arrested and held on bail without your input.

When a person accused of crime misses a court date, judges properly issue an arrest warrant. Before hearing the reason why the defendant missed court and with the added stroke of a pen, the same judge may go further and take away that person's freedom until the next court appearance, typically 30 days later. How? Judges invoke the commonly accepted practice known as "preset bail," setting the conditions themselves as they issue the warrant.

With preset bail, absent defendants do not get the chance to explain or apologize for not showing up. Instead, they're faced with incarceration and the need to find bail money to regain their liberty.

Preset bail keeps poor and low-income defendants in jail, typically for non-violent, less serious offenses because they can't afford even small cash outlays. It matters not whether the person voluntarily returns to court or is arrested on the warrant.

Take Davon, who was charged with driving without a license and mistakenly missed his court date. A warrant and preset bail were issued.

He was arrested, even after twice attempting to turn himself in, and informed that bail had been "preset" at $5,000. Neither the commissioner nor reviewing judge lowered the amount or released him, and Davon remained incarcerated for 39 days before the state dismissed his charge — all for driving without a license.

As student attorneys, we have witnessed the stories of impoverished defendants who received preset bail and remained in jail. This practice seemed fundamentally wrong, and so we set out to find where judges get the power to order bail in the defendant's absence.

We could find no legal authority.

Maryland law tells judges they are supposed to consider information provided from the defendant, such as financial resources and community ties, when deciding if it is necessary to order bail. That does not happen with preset bail.

What else is wrong with this picture? Preset bail judges never know whether the defendant had a good reason for not appearing. They just conclude that the person voluntarily chose to skip court.

In Pinkney v. State, Maryland's highest court rebuked a trial judge for deciding that an absent defendant forfeited his right to be present at trial. First, the judge must investigate, the Maryland Court of Appeals said. If this had happened, the trial judge would have known the defendant had a justified reason for failing to appear: He had a medical emergency and had called for an ambulance.

Not only must the warrant issuing judge investigate, that judge also must conclude that the defendant's absence was voluntary. Even then, waiving a constitutional right to be present should occur only in extraordinary circumstances, the appeals court found. This seems fair. Why rush to judgment and believe the defendant opted to be a no-show?

Yet many judges continue to rely upon preset money bail as a requirement for regaining freedom, even though it is often beyond an indigent defendant's reach. For poor people, money is scarce. It gets worse. At bail review hearings, we find that many judges refuse to conduct an independent review, as the law requires. Instead, they defer and maintain the preset judge's amount.

Whether low or high, preset bail often means lengthy incarceration. For one client charged with misdemeanors, $200 meant 20 days until we gained her release; for another absent defendant a judge ordered $250,000.

Maryland's pretrial release and bail procedure aims to identify defendants who must be held in custody pending trial and provides constitutional protection for their being heard. Before being deprived of freedom, people should have the opportunity to explain an absence and to give reasons why bail is unnecessary. That's fundamental due process. Judges should issue arrest warrants to ensure absent defendants return. Once a defendant is present, a commissioner and reviewing judge will decide the appropriate response by applying the pertinent factors, including hearing from the defendant.

Earl thought he could explain his arriving late to court because he went to the wrong courtroom. He was wrong. Charged with stealing two candy bars, Earl discovered the judge had preset bail at $750 cash. He unsuccessfully petitioned the court to reconsider and spent 10 days in jail.

Preset bail does substantial damage to Maryland's pretrial procedures. Too many individuals, disproportionately people of color, remain in jail because they had no chance to explain and no money to pay.

Nicole Burnette, Diana Griffin and Stephen Thomas 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 faculty supervision. Their emails are ngburnet@umaryland.edu, diana.griffin@umaryland.edu and sthomas@umaryland.edu. Access to Justice students Vincent Andrews, Chris Burreuzo, Jeff Irwin, Bryan Riordan and Marc Salvia contributed to this article.

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