Maryland justice officials should take a fresh look and a new approach to addressing racial bias in our pretrial bail system, which continues to result in disparities in who is let out of jail and given monetary conditions of release that they can’t afford despite reform efforts a few years ago.
The continued reluctance of key justice officials to fully embrace Maryland’s initial pretrial reforms has put people at increased risk during the current pandemic. This reluctance is on display through the consistent imposition of bail. Advocates have also seen a marked increase in the number of people requesting assistance to pay home detention fees, which suggest an increase in orders for home detention. Both of these options impose financial conditions of release and allow private, for-profit businesses to continue to make money off the backs of poor and low-income African Americans who have not been found guilty of anything and who are at increased risk of contracting and dying from COVID-19 if they remain in jail.
Bail reform measures enacted in 2017 make clear that judges are prohibited from ordering financial conditions of release beyond what the individual before them can afford. Since that time, the number of people released on their own recognizance has increased. We have also seen a marked increase in the number of people being held without bail. In short, nearly the same numbers of people are being jailed before trial, while still presumed innocent, only with a different justification. This is not the reform that was intended.
With support from the philanthropic community and everyday concerned citizens, advocates have been able to step up or launch nonprofit community bail funds to help people meet their bail obligations or pay mandatory home detention fees. These community efforts, however, are only temporary relief, not a permanent solution to Maryland’s still broken pretrial system.
Starting now, and continuing into the next year, the Maryland judiciary and legislature should take immediate action to finish the work that was started in 2016 to ensure that no one is sitting in jail because they cannot afford to pay.
First, jail officials must improve release procedures. Currently, some jail officials are favoring the private, for-profit bail bond industry by imposing different criteria against nonprofit, community-led bail funds. This favoritism should cease immediately, and all jail officials should work hand-in-hand with community-led efforts to release people from jail in a safe and expeditious manner.
Second, judges and prosecutors should make better use of pretrial release options that do not rely on financial conditions, and state and county leaders should work harder to ensure that these options are provided to judges. These options include pretrial services divisions that maintain contact with people awaiting trial via biweekly telephone calls or physical visits so that they are able to remain in the community, work and connect to other needed services.
Third, the courts, as well as prosecutors, must assess the racial and gender impact of release decisions, especially in the era of COVID-19, and make those findings public. A report released by the Maryland Office of the Public Defender in 2016 showed that bail amounts assessed against Black defendants are 45% to 51% higher than those for whites. Moreover, while men’s arrest rates have fallen significantly, the arrest rate for women has barely changed. Prosecutors and the courts should take a hard look at themselves, with particular attention to so-called preventive detention (holds without bail), and take immediate steps to ensure that people’s health and economic well-being are not being put at increased risk due to race and gender.
In addition, officials should take immediate steps to increase education at the prosecutor, commissioner and individual judge level. Since adoption of the new court rule in 2017, some justice officials have continued to request or assess financial conditions of release, or improperly substitute ordering someone held without bail for the prior practice of setting an unaffordable and unconstitutional bail. The decisions of these officials should be scrutinized, and these officials targeted for more education about implicit bias, the role of the courts in dismantling structural racism, and effective alternatives to bail, home detention and preventive detention. Chief Judge Mary Ellen Barbera called for nothing less in her June 9 statement on “Equal Justice under Law.”
Finally, when the Maryland General Assembly convenes in 2021, it should take the long overdue step of eliminating all financial conditions of pretrial release. A Maryland state task force on pretrial reform recommended this critical step almost six years ago, and other states are already trending in this direction. Maryland has lost the opportunity to be a leader in this space, but it can and should still take action to bring about racial and economic equity in its pretrial system.
Iman Freeman is co-founder of Baltimore Action Legal Team (email@example.com). Nicole Hanson is executive director of Out for Justice (firstname.lastname@example.org). And Caryn York is chief executive officer of Job Opportunities Task Force (Caryn@jotf.org).