Detention fees unfairly burden poor people | COMMENTARY

Imagine the plight of Jason, a typical Maryland criminal defendant accused of selling drugs. Six months ago, Jason considered himself fortunate when his bail review judge ordered him confined on home detention before trial. That sure sounded better than being locked-up indefinitely in a cage and being exposed to the deadly COVID-19 virus. But after finding it difficult to raise the $400 to $600 monthly fee for his GPS monitoring bracelet, Jason’s not so sure. Now unemployed, he can no longer pay the expensive fee. Yet Jason certainly does not want to trigger the alternative, a return to jail. Is there a way out of this dilemma?

If Jason lives in Baltimore County, luckily there is. Home-monitoring fees have been eliminated there for pretrial and sentenced individuals. This is welcome news, as home-monitoring fees unfairly burden poor people and deepen the inequality that plagues our criminal justice system. Eliminating such fees makes moral and financial sense, and we encourage every Maryland jurisdiction to follow Baltimore County’s suit. At the same time, we caution against judicial overuse of home monitoring. Our pretrial system should not replace its current brand of oppressive and unnecessary incarceration with another “kinder, gentler” form.

For those unfamiliar with pretrial practice, the importance Baltimore County Executive Johnny Olszewski’s announcement deserves explanation. Home monitoring presents a less harsh alternative to detention in jail for those accused of crimes and awaiting trial. People subject to home monitoring wear ankle bracelets, which permit authorities to know their location at all times. While under surveillance, those monitored can live with family and attend work, school or religious services. Unfortunately, many Maryland jurisdictions still charge substantial fees to run these programs, and private companies charge even more. The idea is that monitoring is a privilege that comes with a price tag. Yet this idea is twice flawed.

First, home-monitoring fees can quickly accumulate and create debt that perpetuates the cycle of poverty that is endemic to our criminal justice system. Poor people who struggle to pay will either have to await trial in jail or go into debt, a “choice” that will only increase the gap between the haves and the have-nots in our society. There is a growing awareness regarding the adverse race- and class- impacts of insidious fines and fees across the country, and home-monitoring fees deserve the same moral condemnation, particularly relevant now when COVID-19 delays trials indefinitely, making accumulated monitoring fees untenable even for the relatively well-off.

Second, home-monitoring fees are financially unnecessary. Estimates vary, but it costs approximately $100 a day to keep a Marylander in jail pretrial. While precise numbers are again hard to obtain, home monitoring undeniably costs the state far less, approximately $15 a day. Thus, the state saves money when it employs home monitoring over incarceration. Add to this the fact that a person working on home detention contributes to the state tax base and provides for other family members.

While the case for eliminating fees is clear, we should not uncritically embrace home monitoring as a solution to pretrial justice woes. Interpreting the Due Process Clause, the Supreme Court explicitly stated that liberty prior to trial ought to be the norm, and pretrial detention the “carefully limited exception.” Maryland law enshrines the principle also. Lest we forget: Home monitoring is not liberty, it is surveillance. Monitoring is intrusive and 24/7. It is a form of control that undermines dignity. Nobody would want to be subject to its humiliations. The only thing it has going for it is that it is not as bad as incarceration.

Thus, while we support home monitoring as a way to avoid incarceration in a small subset of cases, the default option should be “release on own recognizance” rather than jail or home monitoring. Despite the bail reforms of 2017, far too many Maryland judges currently order pretrial detention for those accused of crimes and refuse to release on non-financial conditions. This is wrongheaded. It cannot be stressed enough that those accused of crimes retain their presumption of innocence. Yet Maryland jails are brimming with legally innocent pretrial detainees — large numbers of whom, our research shows, will eventually have all of their charges dropped.

Maryland’s system of pretrial mass incarceration must end. Home monitoring can help, but it is far from the preferred solution. Liberty is the preferred solution.

Doug Colbert (dcolbert@law.umaryland.edu) is a professor of law at the University of Maryland. Colin Starger (cstarger@ubalt.edu) is a professor of law at the University of Baltimore. They are conducting an extensive research project on the Maryland’s pretrial justice system.