Money bail extracts too high a toll

Op-ed: The reliance on money bail imposes too high a cost on poor families, the court system and Md. society.

Accused of stealing where she worked as a housekeeper in Baltimore County, a woman I'll call "Lisa" — three months pregnant and the caretaker for her 2-year old son — could have assured her freedom if she could have afforded bail. The prosecutor in her case had yet to submit evidence that a theft even occurred, let alone that it was committed by Lisa. But after she was late to a court appearance, the presiding judge issued a warrant for her arrest and set bail at the amount allegedly taken: $3,000.

Lisa had never been in jail before. Unable to post bail, it would be at least 30 more days from the day she was taken into custody before her next court date. Despite maintaining her innocence, and against the advice of her counsel, Lisa saw her best option as pleading guilty, with the hope that the judge would follow the prosecutor's recommendation that she be released that day.

Instead, she was sentenced to one year in jail, plus restitution for the same $3,000 she could not afford. Lisa ultimately gave birth in jail to another son and missed the funerals of two family members, and her sons were without their mother for Christmas — all because of allegations that were never presented to a jury.

Money bail is supposed to ensure someone shows up for their court dates, not serve as the punishment. Far too often, however, individuals like Lisa are detained and pressured to plead guilty because they cannot afford to pay bail. In a study examining the use of bail in Maryland District Courts from 2011-2015, my office found that of the nearly 47,000 people detained for more than five days at the start of their criminal case, more than 37 percent were held on a bail amount of less than $5,000. In other words, more than 17,000 presumptively innocent people were jailed purely because they and their loved ones lacked either $5,000 to pay the court or $500 to pay a corporate bondsman.

Release pending trial is vital to maintaining employment, housing and sufficient child care. Unaffordable bail can devastate a family. The attorney general of Maryland, consistent with positions taken by the Department of Justice and the American Bar Association, has noted that Maryland's money bail system, which often results in detention solely based on the ability to pay, may be unconstitutional.

To address these concerns, the Maryland judiciary is considering a rule change that would, among other things, prevent courts from imposing money bail that the defendant cannot afford and would encourage the use of non-financial conditions of release. Effective alternatives to money bail do exist. Automated court reminders and pretrial supervision are proven methods of ensuring court appearance, at far lower costs than detention. Consistent with other research, our study further found that unsecured bonds, which only require payment if the defendant fails to appear for court, are as effective as traditional money bail.

The reliance on money bail, even in cases where the defendant poses little risk imposes too high a cost on poor families, the court system and society. If enacted, the judiciary's proposed rule change will be a crucial first step in reforming Maryland's wealth-based pretrial detention system. In 2017, Maryland should ensure that no family is separated based solely on a parent's ability to pay for their freedom.

Paul B. DeWolfe is public defender for the state of Maryland; his email is PDeWolfe@opd.state.md.us.

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