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If you must set bail, make it achievable

Op-ed: University of Maryland student-lawyers recount tales of bad bails.

As a court rules committee considers Friday whether to require Maryland judicial officers to set bail prices that defendants can afford, the student-lawyers I work with, who represented a dozen incarcerated people charged with non-violent crimes, wanted to share their experiences.

Money, they have learned, decides liberty or jail for too many of Maryland's defendants, a fact that privileges the wealthy and others able to pay a bondsman's 10 percent, non-refundable fee. This has been one of their toughest lessons: How does one reconcile the law's commitment to equal justice with judges who order excessive bail clearly beyond people's financial capability? Maryland judicial officers know that defendants not posing a flight or safety risk are legally "entitled" to release on the "least onerous" conditions, yet many rely upon money and bondsmen to jail people with few resources.

Without the student-lawyers intervention, the two-week jail stay that 10 of their clients endured would have extended to 45 days because none of them could afford their bail or a bondsman's fee for freedom.

Here are some of their stories:

•Ronald was a 29-year-old father of four struggling with heroin addiction; he was charged with taking the dog he recently purchased from the home where he and his ex-wife shared child care. A commissioner originally set his bail at $10,000, which was later lowered to $2,500 by a reviewing judge in the hopes that would make the $250 bond fee attainable. It did not. With the student-lawyers' help, he was eventually released on a condition that he address his drug use. He found a program, reunited with his ex-wife — who said he was a great dad and not dangerous, but needed help — and had his charges dismissed.

•Antonio spent 16 days behind bars on $5,000 bail. Neither he nor anyone he knew could afford giving $500 to a bondsman to buy his freedom pending trial. Antonio had been in and out of the system as a prisoner of addiction. When he was drug-free, he devoted himself to his children and to his trade as a chef. After speaking at length with him, his student-lawyer became convinced Antonio was ready to show this same commitment to battling addiction. Identifying a structured residency treatment program, the student-lawyer convinced the judge it was a better alternative to jail, and Antonio has since made valiant strides toward being a dad and great chef again.

•James was facing trial for a four-year old "dropsy" drug case with slim evidence: A police officer said he dropped a plastic bag containing a tiny unspecified drug, but James denied having drugs. Student lawyers verified that he lived with his 98-year-old mom and worked on home improvements. But because he missed court previously, a judge ordered $3,500 bail. Seventeen days later, one student-lawyer asked a different judge to lower his unaffordable bail; that judge went one step further and made the bond unsecured, meaning it required no money or payment up front, only reappearance and supervision. James made good on his promises and the state dropped the charge against him.

• Brendan, unemployed and the single parent of his young son, was arrested at home one morning for failing to appear in court on an unregistered dirt bike charge. The judge imposed an extraordinary bail in his absence: $5,000 cash only, "defendant only." After a student-lawyer presented new information, the judge granted Brendan release with supervision. Brendan's bail, with its added stipulations, defined excessive. Had we not appeared, he would have served most of the 90-day maximum — shameful for a system priding itself on an accused's presumed innocence.

• Gail was given a trespass charge for remaining too long in a hospital's emergency area. She stayed in jail on $100 bail until her student-lawyers found the ideal residential treatment to address alcoholism and depression. Gail called last week. "Thank the students, judge and pretrial agent for giving me the chance to turn around my life," she said. That's something money bail and jail cannot buy.

Since the Access to Justice Clinic began at the University of Maryland School of Law in 1998, student-lawyers have repeatedly witnessed detainees losing freedom and homes because they lacked bail money and could not purchase liberty from the lucrative bail bond industry. While student representation sheds some light on such bail hearings, these reoccurring tales rarely became news items.

The issue made headlines last month, however, after the state's attorney general and the district court's chief judge reminded judicial officers that they should use money bail sparingly and not as a means to incarcerate defendants. We urge the judiciary's Standing Committee on Rules of Practice and Procedure to take our experiences under consideration and follow suit.

Maryland Law School Professor Doug Colbert (dcolbert@law.umaryland.edu) supervised the Access to Justice Clinic's student-lawyers, who also contributed to this piece: Abigail Beichler, Amanda Chong, Ava Claypool, Brian Healy, Brent Weinberg, Katrina Eiden, Augustin Bibum, Jake Schiff and Ben Henry.

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