The officers cleared in connection with the death of Freddie Gray are absolutely right to consider the thousands of dollars they owe bail bondsmen to satisfy the conditions of their pre-trial release an ongoing injustice. Likewise, those concerned about unequal treatment for the officers by the criminal justice system are right to ask why we should be worried when police struggle to pay off their bail bonds but not when the same thing happens to thousands of ordinary people every year.
The issue is not whether it's unjust that these six officers are forced to pay bail bondsmen $25,000 to $35,000 as a result of their pre-trial release. It's whether Maryland's cash bail system is unjust, period.
Two considerations should determine whether a criminal defendant is locked up or free before trial, and they are whether he poses a threat to the community and whether he is a risk to flee rather than appear in court. It should have been abundantly clear that neither issue was a concern in these cases. All six had jobs — as police officers no less — families and ties to the community. It wasn't the threat of being hunted down by a bail bondsman that was going to get them to the courthouse. And none of the six had a history of violence.
In the case of Officer Edward Nero, State's Attorney Marilyn Mosby's office argued in a court filing, "Because of the defendant's actions, not only did a young man lose his life, but the social contract that holds our community together was destroyed, helping to cause Baltimore to descend into chaos and violence. The facts of this case demonstrate the defendant's utter lack of regard for the safety and well-being of others, causing the state to strongly believe that the defendant is a danger to the community."
Really? Were we to believe that Mr. Nero would spend his time before trial wantonly failing to seat belt people?
Rather than serving its intended purpose, the setting of bail too often becomes a proxy for showing how seriously prosecutors and judges take a defendant's alleged offenses. Thus, we saw bail of $350,000 set for four of the officers in the Gray cases and $250,000 for the others, and $500,000 for the teen photographed smashing the windshield of a police car during the unrest after Freddie Gray's death. It is, in a sense, punishment before the trial.
And its effects fall much harder on the poor than on the wealthy or well connected. Defendants must typically agree to pay a bail bondsman 10 percent of the bail amount regardless of the outcome of the case. They may put down as little as 1 percent and agree to pay the rest over time. That's what happened in the case of the officers charged in connection with Gray's death; family members paid down payments ranging from $500 to $7,000 and agreed to monthly or in some cases weekly payments that could last for years, The Sun's Kevin Rector reported last week. For those without even modest resources, bail of virtually any amount is unaffordable. Some of those arrested in the riots were unable to post bond and languished in jail for weeks only to see the charges against them dropped.
In 2014, the Commission to Reform Maryland's Pretrial System recommended eliminating asset-based bail altogether. It cited research showing little correlation between the bail amounts set in Maryland courts and the risk posed by the defendants, and it noted the experience of Washington, D.C., which long ago eliminated cash bail in virtually all cases while achieving comparable or better results in terms of court appearance and public safety. This summer, the Abell Foundation laid out a road map for the state to transition away from cash bail to a system of empirical risk assessment to determine who should be released and under what conditions. Several other states have already moved to eliminate cash bail or are taking steps in that direction.
The Freddie Gray officers either have or are expected to receive back pay as a result of their acquittals or prosecutors' decisions to drop charges, so they will likely be able to pay off their bond debts. But those who can't come up with money for a bail bondsman frequently lose jobs, lose apartments and find their families thrown into turmoil as a result of being locked up before trial. That doesn't keep us safe any more than setting high bail for the Freddie Gray officers did. We can only hope that their example, if not those of thousands of anonymous defendants who cycle through the criminal justice system every year, will finally convince Maryland lawmakers to eliminate cash bail once and for all.