Since September, when Maryland's highest court declared poor people had a constitutional right to a lawyer when first appearing before a judicial officer, the state's pretrial release system has been the subject of scrutiny, with many attorneys, judges and lawmakers calling for significant reforms.
And rightly so. The system has failed to protect the freedom rights of indigent defendants.
But regardless of any future overhaul needed to implement the court ruling, the legal community must recognize one option available to judicial officers to improve pretrial justice immediately: the increased use of unsecured bond.
We are law students in the Access to Justice Clinic at the University of Maryland Francis King Carey School of Law. Over the past three months, we have represented indigent defendants at Baltimore City bail hearings in our capacity as Rule 16 "student attorneys."
Based on our experience and research, we see an injustice when judicial officers under-utilize unsecured bond as a pretrial release option for those charged with nonviolent crimes and having strong community ties.
Unsecured bond does not require payment of a bail bondsman's non-refundable 10 percent fee or the posting of property or cash. Instead, the defendant promises to return to court and agrees to pay the bail amount if he fails to do so.
Unsecured bond gained traction 50 years ago, when Attorney General Robert F. Kennedy championed alternatives to secured money bail to help poor people avoid pretrial incarceration. In 1968, the American Bar Association incorporated unsecured bond in its pretrial release standards.
Maryland law embraces unsecured bond and favors restoring liberty to defendants with limited resources. Judicial officers know they must impose the least burdensome conditions that safeguard freedom and protect public safety.
Yet only Maryland's wealthiest counties, Montgomery and Howard, use unsecured bond with regularity. Judicial officers in Maryland's poorest judicial areas — Baltimore City and Allegany and Garrett counties — hardly ever offer this option. Commissioners and judges also overlook unsecured bond in African-American majority jurisdictions, which includes Prince George's County along with Baltimore City.
We find this surprising. Unsecured bond has proven effective in ensuring public safety and defendants' return to court, as a recent Pretrial Justice Institute study in Colorado shows.
Additional statistics indicate that nearly nine of 10 Montgomery County defendants released on unsecured bond reappeared in court.
Some of our clients would have been ideal candidates for unsecured bond. Too many remained in jail for too long on non-violent charges because they could not pay amounts ranging from $100 to $750.
Take 28-year-old Nakia, with two semesters of college and only one misdemeanor blemish on her record. She stayed in jail 19 days for drug-related charges because her mother could not afford the bondsman's $350 fee.
Or 58-year old Dexter, a cancer patient weighing 83 pounds, who remained in jail for 20 days when charged with stealing soap and deodorant valued at $13.98. He could not afford $200 bail.
Unsecured bond provides substantial benefits. Taxpayers save the high expense of pretrial incarceration, and released defendants stand a better chance of maintaining freedom. Studies show that low-risk defendants have a reduced chance of being rearrested once removed from the jail environment.
As students, we feel obligated to ask why defendants unable to afford bail must remain in jail for 30 days and often longer before returning to court. We see an opportunity to save money and avoid punishing impoverished individuals.
We also wonder why Baltimore City and most Maryland counties rely on money and collateral bond when it predictably forces poor people to remain in jail or pay a fee. We believe many individuals could be released on unsecured bond.
To effect this change, lawyers must request, and judges must offer, unsecured bond more often. In our experience, the simple request can make a difference.
Consider Joe, who spent two weeks in jail, charged with rogue and vagabond, a crime involving entering an unlocked vehicle, and theft under $100, because he could not afford $120 bond. When the judge declined to release Joe, his student lawyer asked for unsecured bond. The judge granted that request, and $120 was no longer the difference between liberty and detainment.
Every member of the bar must take measures to enhance the administration of justice. We remain hopeful that unsecured bond will become an option for economically disadvantaged people.
Patrick Brown and Mary Kate Healy are students in the Access to Justice Clinic, a one-semester experiential course at the University of Maryland law school where students represent clients under faculty supervision. Their emails are patrickbrown87@gmail.com and mkhealy@umaryland.edu. Access to Justice students Mollie Rosenzweig, Sandeep Singh, Patrick Stewart and Steve Zerhusen also contributed to this article.
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