Maryland's Legislative Black Caucus voted overwhelmingly Thursday to oppose legislation that would negate part of a rule adopted by the state's top court diminishing the role of cash bail in pretrial release. (Michael Dresser/Baltimore Sun video)
Today, Maryland's pretrial justice system formally begins operating under a new rule adopted by the Court of Appeals that deprioritizes money bail. Despite the negative publicity pushed by the bail-bond industry and opponents of reform, the new rule is actually a very modest change that will ensure that money alone no longer determines whether Marylanders are jailed or free before standing trial.
This is just the beginning of pretrial justice reform, and Marylanders must be careful not to judge the new rule's impact based on incomplete data or confused notions of the purpose of money bail.
One lingering source of confusion regarding money bail is its purpose. We should be clear that money bail was never supposed to be used to improve public safety by detaining dangerous individuals. Rather, money bail's only purpose is to provide an incentive for defendants to return to court to face charges. If defendants do not show, they forfeit their money bail. Someone who is a danger should not be able to buy freedom because they are wealthy, and someone who is not a danger should not be incarcerated simply because they are poor. Unfortunately, Maryland's prior money bail system suffered from both problems: It punished the poor and low income while allowing wealthy folks who potentially posed danger to the community to buy their way out of jail.
How does setting bail a defendant can't pay keep the public safe?
So what does the new rule do? Simply put, it requires judges to consider non-financial conditions of release before using money bail. If they decide that a money bail is needed to ensure someone's return to court, they cannot impose a bail amount that is unaffordable.
Everyone has known this change was coming. As a result, speculation about the rule's impact has already begun. Preliminary data suggest that more people are being released on their own recognizance, without being subject to a money bail that they cannot afford. Data also suggest that there has been in uptick in Maryland defendants being held without the option to pay bail. (However, it is unclear whether these same individuals previously would have been detained on an unaffordable bail.) Overall, the early picture is that money bail is already being relied upon less often and detention rates are generally decreasing. This is positive change and consistent with the intent of the rule change.
Now that the amended rule is going into effect, its impact can start to be examined more accurately. Its implementation can be monitored, and judges and commissioners who are not following the letter and the spirit of the rule change can be held accountable through subsequent legal challenges.
When the Court of Appeals of Maryland approved a new procedural rule this week — making it crystal clear that defendants should not be held in jail before trial simply because they can't afford to get out — bail reform advocates rejoiced, praising the move as a major step toward overhaul of an inequitable system. It isn't.
Regardless of what the data show, however, the court's amended rule was never expected to be a cure-all. It is a single step in the culture shift needed for Maryland's justice system to rely less on a large corporate industry that profits off the desperation of poor, disproportionately black, families.
For the rule and its intended purpose to be a success, additional reforms are needed. Statewide pretrial services and supervision, validated and race-neutral risk assessment tools with appropriate oversight, text alert reminders and diversion programs without lengthy waiting lists are among the tools that would help transform pretrial practices in Maryland from a wealth-based system to a risk-based process. It is up to the Legislature to make these possibilities a reality.
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.
The bail bond industry would like us to believe that the Court of Appeals rule is failing before it even took effect. But this is just the beginning of pretrial justice reform. Maryland should take the next step and move forward to a system free of money bail.
Caryn York (email@example.com) is director of policy and strategic partnerships at the Job Opportunities Task Force, and Larry Stafford (firstname.lastname@example.org) is executive director of Progressive Maryland. Both are members of the Coalition for a Safe and Just Maryland.