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Freedom for sale

We didn't question a Baltimore district court judge when she said she couldn't trust Heather Cook's judgment if released from jail pending trial. After all, the Episcopal bishop is charged with being a repeat drunk driver who recklessly took the life of a bicyclist on Roland Avenue last month, then left the scene. But we do wonder why Judge Nicole Pastore Klein allowed Bishop Cook bail at all, even one as high as $2.5 million. Does Ms. Cook suddenly become trustworthy if she wins the lottery?

Judge Klein took a gamble on the public's behalf and lost. Bishop Cook, whose attorney earlier in the week said she couldn't afford release, posted bail today through Fred Frank Bail Bonds, according to court records.

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The scenario underscores why a recommendation submitted last month to legislative leaders proposing that the state's asset-based bail system be "completely eliminated" should be given swift and thorough consideration. Whether defendants are incarcerated before trial should be based on the likelihood they'll return to court and won't harm the public rather than on their ability to afford release.

"The use of financial conditions at the bail decision is obsolete, and even dangerous, because financial conditions are not based on risk," the Governor's Commission to Reform Maryland's Pretrial System concluded in its final report.

It's unclear where Gov.-elect Larry Hogan stands on this issue, but Maryland's new Attorney General Brian E. Frosh should be a proponent. As a legislator, he led an effort in the Senate last year to revamp Maryland's pretrial release program as the state was trying to figure out how to begin providing attorneys for thousands of indigent defendants at bail hearings.

Mr. Frosh's bill, which passed the Senate 37 to 9, would have allowed a computerized assessment tool to determine someone's flight- or public-safety risks. Those deemed low risk would be released automatically, while higher-risk detainees would have a bail hearing before a judge, removing some of the subjectivity from the system and leading to fewer people being needlessly incarcerated at taxpayer expense. The controversial bill was opposed by the bail bonds industry, whose business was expected to be hit hard by the change even though it still allowed for bail, and it was ultimately shelved after Gov. Martin O'Malley and lawmakers cobbled together a short term fix to provide the necessary public defenders.

The commission's new report and recommendations give lawmakers a reason to revisit the issue, however, and to go one step further, doing away with bail altogether.

Applying financial conditions to pretrial release is supposed to give a defendant incentive to come to court and to be on his or her best behavior while out. But it often results in poor, low level offenders being unnecessarily held because they can't post even a few hundred dollars bond or bail, and higher risk people, like Bishop Cook, remaining free. An examination of 3,200 Maryland defendants and their conditions of release, included in the report, showed bail amounts to be inconsistent and arbitrary. Court commissioners gave moderate and high-risk defendants the same median bail as low-risk defendants ($5,000), and judges at the bail review hearings gave low risk defendants a median bail twice as high as that of high-risk defendants: $10,000 compared with $5,000.

Release can also often be secured for a fraction of the bail amount. Bail bonds businesses can put up the money for a fee of 10 percent, taking as little as 1 percent down along with promissory notes, which may not ever be collected, guaranteeing the difference. In the bishop's case, court records show that a benefactor named Mark Hansen made a down payment of $35,000 — 1.4 percent of Ms. Cook's set bail amount — and promised to pay another $215,000 over the next 215 months.

That wouldn't happen in Washington D.C., which has successfully released defendants without bail using a risk assessment tool for the past two decades, according to the commission. Roughly 85 percent of Washington's pretrial defendants are released "with conditions that correlate to risk level," such as monitoring. Most of those released — 90 percent — come back to court as required and aren't rearrested pending trial; 1 percent of them are charged with a violent crime while out.

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That's an important 1 percent, especially because those crimes are arguably preventable. But we don't believe that attaching a dollar figure to release makes much of a difference.

Representatives of Ms. Cook have said that she plans to participate in an intensive treatment program while out on bail and will pose no societal risk. For all our sakes, we hope that's true, but there's no reason to think it any more likely just because someone put down $35,000 on her behalf.

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