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Sen. Will Smith and Del. Erek Barron led a rally in Annapolis for bail reform. (Michael Dresser/Baltimore Sun video)

The commercial bail system is unfair, unsafe, costly and racially biased. Thankfully, Maryland and a handful of other states now lead the nation in moving away from it.

Six months after a new judicial rule went into effect requiring court officers to seek alternatives to cash bail, its use has declined significantly, without causing an increase in the relatively small number of defendants who fail to appear at trial. A November report by the Maryland Judiciary that looked at the impact of the new rule concluded that it “is succeeding in ensuring that lower level offenders are not detained solely because they cannot afford bail. It also indicates that those that pose the most risk are being preventively detained.”

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At a recent House Judiciary Committee hearing on the impact of the rule change, Baltimore County State’s Attorney Scott Shellenberger, who initially opposed the change, suggesting it represented a threat to public safety, acknowledged that he had been wrong.

“The sky has not fallen,” he said. “We are starting to hold the right people, and we are starting to release the right people.”

A judge's ruling that the state can't hold suspects who aren't represented by counsel at their initial hearing aims to right a glaring injustice regarding who ends up in jail

As a result, many jurisdictions are saving money on unnecessary detention while allowing individuals who have been arrested, but not convicted, to maintain their jobs, housing and family commitments while awaiting trial, without being penalized for their economic status.

But the work to end commercial bail in Maryland is not yet complete.

Judicial officers are currently holding 20 percent of defendants without bond, roughly three times more than they did before the rule change, largely because there is not yet a viable alternative. In jurisdictions without pretrial services programs, some judges have responded to the rule change by holding more defendants in jail, viewing pretrial incarceration as the only option available to them.

These changes have highlighted the need for more pretrial release programs, a highly effective but under-utilized option for individuals who are not appropriate for release on their own recognizance but do not pose enough of a risk to remain incarcerated pretrial. For people who fall in this range, pretrial release programs provide additional supervision and support so they can remain safely and productively in the community while they await the resolution of their cases.

As much as they might want one, judges do not have a crystal ball. Bail reviews and sentencings require a judge to make an educated guess about a person's future conduct, whether there is an unacceptable risk that he or she will endanger somebody. That is one of the most difficult decisions a judge is required to make, and no one will get it right every time.

Indeed, as the judiciary report says, “to complement the effects of the new Rule, enhanced pretrial services must be implemented in each county that does not yet have a pretrial services unit.”

A new report by Open Society Institute-Baltimore, Steps in the Right Direction: Maryland Counties Leading the Way in Pretrial Services, details pretrial service programs in Montgomery and St. Mary’s counties and Baltimore City, offering three models for other jurisdictions to examine in implementing their own programs.

Currently, in 11 of Maryland’s 24 jurisdictions, court officers can refer defendants to pretrial services programs instead of requiring cash bail. These services often include case managers to monitor compliance with pretrial release conditions like check-ins, provide court date reminders and assist defendants in obtaining IDs, enrolling in health insurance and connecting to community-based housing, employment, addiction treatment and counseling resources.

Antonio Muhammad sat in a Baltimore jail for weeks last year on $2,500 bail after being swept up in the riot-related arrests on charges of burglary. If it weren't for a crowdfunding effort to help people like him afford bail and the efforts of his court-appointed attorney, Kerri Cohen, the 20 year old with no criminal record might have sat there for 11 months — until prosecutors dropped his case this spring — simply because he was unable to buy his way out.

As the report says, “it is up to 11 times cheaper to serve defendants in the community than it is to hold them in jail, and public safety is improved in the process by connecting defendants with community services and resources to meet their needs to they can remain crime-free.”

While expansion of pretrial service programs has proven to save money for jurisdictions, it takes funding to establish them. It is essential that Gov. Larry Hogan include funding for pretrial services in all 24 Maryland jurisdictions. Only then can the state’s pretrial system make the full shift away from commercial bail and toward fairer, safer solutions.

Michael Walter is a program specialist at Open Society Institute-Baltimore, which funds members of the Coalition for a Safe and Just Maryland. He can be reached at michael.walter@opensocietyfoundations.org

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