As clinical law students practicing law under faculty supervision, we represented incarcerated individuals facing non-violent charges at bail hearings. We made two important discoveries. First, Baltimore's daily pretrial jail population of approximately 2,800 people includes many who are there not from a new arrest but from missing a prior court date. Failure to appear (FTA) warrants, we learned, translate to 30-day and longer jail terms until detainees next return to court. Between July and September, police arrested over 1,300 people monthly on FTA warrants, according to public safety officials. That's a lot of taxpayer dollars going to incarcerate people for non-appearance and posing little risk of danger to the community.
Then came the final revelation: Over 34,000 people in Baltimore live daily with the fear of arrest because of outstanding warrants for missing court. Most are low-income, African-Americans charged with misdemeanor and traffic offenses who know that they stand a strong likelihood of languishing in jail if arrested because they cannot afford money bail.
Our clinic experience began with observing 19-year old Ashley's bail hearing because she failed to pay her MTA fine. The charge carried no jail time. We wondered why she had been arrested. The commissioner explained "it was the FTA."
We represented several clients who had voluntarily returned and asked for judicial forgiveness of their warrant for not coming to court and a new court date. Others did the same on their own, after cooperating with the police sent to arrest them. While some judges responded favorably to the request for leniency, many ordered bail and incarceration.
Failure to appear frequently became a judicial code phrase for justifying money bail that denied liberty to low-income people, unless they paid a bondsman's 10 percent non-refundable fee.
Take 25-year old Chris. Never previously convicted, he faced a misdemeanor theft charge. Chris suffered mental health and memory issues that contributed to missing court twice. Chris voluntarily surrendered to authorities, hoping he would receive help. Instead he stayed in jail 15 days when unable to post $150 bail. Chris would have stayed twice as long had we not secured an alternative placement in a residential treatment center.
We soon learned that judges often "preset" bail when issuing a warrant without waiting to hear the reasons for defendants' absence. Many colleagues then refuse to consider changing the bail once the detainee is brought before them. That judicial courtesy typically left low-income detainees in jail and unable to see the judge who preset their bail until the following month. One such instance involved John, who remained in jail for 69 days on an unaffordable preset $4,000 bail.
While we often succeeded in gaining clients' freedom and rehabilitation placement, we turned to the bigger problem of city defendants with outstanding FTA warrants. Many had missed court or appointments with probation and pretrial agents. They feared losing jobs, homes and separation from family if they voluntarily surrendered and were incarcerated.
This motivated us to take action.
We knew it was a serious matter to miss court. Yet the consequences seemed unfair. We also realized the difficulty of regaining people's trust, particularly following Freddie Gray's death. We aimed for defendants returning to the justice system to face non-violent charges and regaining liberty until trial.
We created the framework for a Warrant Forgiveness Program where individuals charged with non-violent misdemeanor crimes could appear before a court clerk, obtain a new court date and eliminate vulnerability to arrest..
We tested our idea and found the police, corrections, public defenders and prosecutors receptive. Police saw forgiveness as reducing the risk of danger when serving warrants and enhancing community relations. Jail officials envisioned cost reductions from a reduced population and increasing focus on remaining detainees. Public defenders believed forgiveness enhanced access to counsel and eliminated unnecessary incarceration. The state's attorney identified specific non-violent offenses that allowed for concentrating on serious crime and furthering the public's cooperation in prosecuting crime.
Extraordinary times like the present call for non-traditional measures. Too many poor people — overwhelmingly of color — comprise the city's pretrial jail population and likely represent the bulk of people with FTA warrants.
Similar to programs initiated in St. Louis, Atlanta and College Station, Texas, warrant forgiveness would overcome pretrial reliance on money bail and incarceration, save taxpayers substantial funds and reinforce equal justice to people with few financial resources.
We call on the judiciary to implement a Warrant Forgiveness Program for those with outstanding warrants for failure to appear in court, particularly now when the holidays encourage a spirit of generosity and clemency and our justice system needs all the good will it can get.
Maryland Law School Professor Doug Colbert supervised the clinical student authors, Brendan J. McGrath (firstname.lastname@example.org), Daniel Bosworth (email@example.com) and Spencer A. Evans (firstname.lastname@example.org). Law students James Handley, Elizabeth De Santis, John M. Little, Ben S. Henry and Amanda Clark also contributed to this op-ed.