Carroll County Times
Carroll County

'Moneyball' bail reform not off the table in Maryland

In a frantic attempt to avoid the predicted $28 million price tag attached to providing an attorney for defendants at initial appearances where bail is set - which occur around the clock - the General Assembly heard many ideas, including amending the state's constitution.

Sen. Brian E. Frosh, D-Montgomery, however, wanted to try something that would remove the subjective decision-making about bail from the hands of a judicial officer completely: a pretrial risk assessment tool.

Though Frosh's bill died in the House of Delegates, the concept is still lurking as a way to streamline the bail process in Maryland, Frosh said.

Gov. Martin O'Malley is even considering an executive order to develop and pilot test a risk assessment tool in some jurisdictions, according to Bill Toohey, spokesman for the Governor's Office of Crime Control and Prevention.

"It's moving forward, but moving forward slowly," Toohey said. There is no timetable for when an executive order may be signed.

Under Frosh's bill, a Maryland commission would have developed a tool to use when people are arrested that takes into account factors relating to their history with the criminal justice system, such as whether they have failed to appear for a court date or committed a crime while out on bail in the past.

Many have compared risk assessment tools to the "moneyball" approach to developing a baseball roster: Base decisions on the statistics and factors that have a proven correlation with the goal.

Research by the Laura and John Arnold Foundation, which funded the research and development of a national risk assessment tool, suggests that none of the interview-based factors asked of defendants - such as employment, drug use and residence - were any more predictive than the information that can be gleaned from the defendant's record alone.

The interested parties in Maryland have not yet chosen a risk assessment tool to pilot, according to Toohey, but Paul DeWolfe, state public defender, said that the task force that has been investigating changes to the pretrial release system since 2012 was impressed with the Arnold Foundation's methodology.

"It was very convincing that the use of this evidence-based practice was a real reform and that the use of risk assessment works well in many other jurisdictions," DeWolfe said.

"It makes the process less discriminatory," said Tim Murray, executive director of the Pretrial Justice Institute, an organization which advocates for pretrial reform to make sure that people are not detained unnecessarily while they wait for a trial date.

Several other states, or jurisdictions within states, use a risk assessment tool to predict with "an impressive degree of precision" what pretrial release conditions are necessary to accomplish the goals of bail without requiring a judicial officer to make a determination, Murray said.

The risk assessment tool would have been used in place of a district court commissioner making the determination in Frosh's bill in the hopes of mitigating the need for an attorney to be present.

However, because the system was not changed by the legislature, if a risk assessment tool is piloted under an executive order, the assessment would still be used by the commissioner rather than in lieu of the initial appearance as Frosh envisioned, he said.

DeWolfe said the Office of the Public Defender supported the implementation of a risk assessment tool as an added protection for defendants but not a replacement for an attorney.

"My goal is to have defendants represented," he said, but added that "the system would be in a better place" with a pretrial risk assessment tool.

Push-back in the legislature came, in part, due to concerns that replacing a commissioner with a computer was not going to benefit the judiciary or defendants, according to Frosh.

"The fear was, 'Oh my God, we're turning our judicial system over to computers,'" he said. "People kept analogizing it to whatever science fiction movie they liked best."

However, Frosh said that he thinks a lot of progress has been made among state leadership and he supports an executive order that at least begins reforming the bail process.

"It's a great experiment," he said.