Two of my recent clients were incarcerated before trial because they couldn't afford bail, though neither received jail sentences at the end of their cases. The state even dropped one of the matters. These two individuals' experiences provide important insight to what a future Maryland justice system might look like without cash bail.
As a public defender of over 13 years in Baltimore City, I know my two clients' examples aren't unique. Forget for a moment that bail preys upon indigent people; that city bail premiums are overwhelmingly paid by African-Americans; that people plead guilty because they are stuck in jail on unaffordable bails; and that a consensus of social justice organizations, defense attorneys, prosecutors and non-partisan think tanks want change. Let's focus on what reform means.
Baltimore police arrested Client 1, 54 years old, on charges of helping two others selling heroin in a public market — a felony. The state claimed the crime was captured on surveillance video. The day of the arrest, a commissioner set the initial bail at $5,000, which Client 1 couldn't make. At the bail hearing, a judge jacked the bail up to $25,000, sealing Client 1's pretrial fate. There is no automatic second bail review, and requests for one are often denied. Our best shot at release for Client 1 was to wait a month until the state indicted the case and sent it from district court to circuit court, where a social worker from my office worked with Client 1 on securing drug and mental health treatment and housing. Client 1 already had two part-time jobs, an apartment, a supportive family and a non-violent record, but also a nasty drug habit never addressed properly. After four months of incarceration, we found a program, and I was able to convince the court to schedule another bail review. The judge did the right thing and released Client 1 with a requirement to seek treatment. Currently, Client 1 is close to finishing residential treatment. The state never located the surveillance video and dropped the charges at the trial date.
Police arrested Client 2 for assaulting a fellow homeless person in what appeared to be a mutual fight. Upon arrest, a commissioner set bail at $150,000 and a judge kept it the same during a review hearing. Client 2 didn't have two nickels, much less $150,000 or the 10 percent needed to pay a bail bondsman. We had an opportunity for release because a judge set a bail, but the bail was unattainable, making it a pretrial punishment — a sentence while presumed innocent. So, despite the charge, Client 2 was not deemed too dangerous for release by the first judge. Again, we waited until after the indictment to get our social workers involved for this client, who was young, had a non-violent record and was in need of treatment and housing. Once Client 2 had the proper supports — and the state recognized that the case was not as serious as had been charged — a circuit court judge released Client 2 after several months of incarceration, requiring that the person remain in a treatment program. Client 2 has since accepted a reduced plea to a misdemeanor with a probation sentence conditioned on completing treatment. Sadly, the prospect of more jail time scared Client 2 away from pursuing self-defense at trial.
Eliminating cash bail means forcing judges to decide "in or out." However, "out" doesn't have to mean we open the cell door, tell the defendant to return on the court date and hope for the best. The two main considerations for a judge in deciding bail are dangerousness and flight risk. For both of my clients, we eventually found treatment, housing and a superficial level of monitoring. But a model that initially keeps the poor in jail and overburdens an under-resourced public agency (my office) is unsustainable. The justice system should be built on a premise of jail alternatives from the start of each case (realizing that some cases are not appropriate for this) to put release options in place for judges.
Part of bail reform is transforming — or creating, if need be — local pretrial services agencies into more holistic overseers of defendants awaiting trial dates. As it is, Baltimore City's pretrial agency acts as an arm of the state rather than a neutral arbiter. Instead of just looking for threats and reminding people of court dates, the agency should assist defendants in finding services. Additionally, pretrial can try to find restorative ways to solve cases short of court, such as treatment, restitution and mediation measures.
We can easily pay for it. A 2011 Justice Policy Institute study found that incarcerating an individual in Maryland costs about $100 per day, but releasing someone on pretrial services costs about $2.50. St. Mary's county, which just started its own pretrial program in 2015, found costs to be $140 per day for jail and $30 for pretrial (part of which was startup costs). St. Mary's, with much fewer detainees than Baltimore, has saved hundreds of thousands of dollars.
During the past legislative session, the bond industry, fighting for its life, pushed back against recent landmark actions by Maryland's high court that require judges to move away from bail and consider other release options as first resorts. But when someone forks over collateral to a bondsmen, often on a payment plan with fees, the exchange is money for freedom, nothing more. No real services are provided. Nor can I recall bondsmen arresting someone who skips out on court. In the city, the police or sheriffs do the dirty work. We've privatized bail and built up our jails and gotten nothing in return.
It is time we recognize that Maryland's pretrial apparatus is a gateway to a more restorative and effective system. Perhaps next year lawmakers will finally finish the task of eliminating cash bail while beefing up pretrial services.
Todd Oppenheim is an attorney in the Baltimore City public defender's office. His email is firstname.lastname@example.org; Twitter: @Opp4Justice.