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

Baltimore City is losing the battle against pre-trial mass incarceration. Our jail system is simply overburdened with individuals who have not been convicted of a crime. There are two primary drivers at work here: Poor people cannot pay bail amounts that bear absolutely no relation to their income levels, and the judicial system, straining under volume, spends too little time prior to trial seriously considering whether the charges against poor people are even remotely grounded in reality.

A new judicial rule recently enacted to combat the pernicious and well-documented effects of money bail has perversely done little to reduce pre-trial incarceration rates. The rule states that a judge should treat money bail as a last resort and, when setting a bail amount, must consider the defendant’s income level. In practice, many judges have interpreted the rule as requiring them to deny everyone bail in lieu of setting a monetary bond. But this is a false interpretation. The new rule provides alternatives to money bail to prevent poor people from being incarcerated on high bail amounts.


This is not a theoretical argument. As students at the Pretrial Justice Clinic at the University of Baltimore School of Law, we have seen this dynamic play out first hand. Over the course of this semester, we observed several bail review dockets to assess the impact of the new rule. In docket after docket, we witnessed the same phenomenon: District court judges holding the vast majority of individuals without bail.

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.

For example, on Sept. 11th, 31 individuals appeared before Judge Joan Gordon for their initial bail hearings; only one was released on his own recognizance. Three individuals were detained on monetary bonds that they could not afford. But the vast majority — 27 individuals — were denied bail.

Judge Gordon’s docket that day was not an anomaly. On Oct. 23rd, 24 individuals — all of whom were charged with misdemeanor offenses — appeared before Judge Jack Lesser. Only two of those individuals were released on recognizance. Three were detained on monetary bonds ranging between $1,500 and $7,500, while the remaining 19 were denied bail. Some of those individuals had no prior criminal convictions and no history of violence.

Our clinic has filed over 20 habeas petitions drawing attention to some of the legal errors made by district court judges in their pre-trial determinations. We have enjoyed some degree of success as circuit court judges have overturned the decisions of their colleagues at the district court level. However, the process of righting these wrongs can take weeks while our clients remain incarcerated.

As dean of the University of Baltimore School of Law for the past five years, I have come to see that the Maryland pretrial justice system suffers from the same flaws as the New York system I practiced in years ago. I want to lend my voice in support of a better system in Maryland, a system based on public safety, not economic status.

The consequences these individuals face as a result of their pretrial detention are wide and far-reaching. Some of our clients have lost their jobs, homes and even custody of their children. Several have lost government issued benefits due to their incarceration. The fact that they stand to lose everything because pretrial release services are not being properly utilized is shameful.

In the event release alone is not a viable option, there is a middle ground. The most significant amendment to the new rule allows for a series of 15 conditions of special release. These conditions include periodic reporting, restrictions on travel, stay-away orders, mandatory employment or attendance at school, drug and alcohol testing and/or mandatory counseling.

The new rule was designed to promote release and to prevent the imposition of egregiously high bail amounts that bear no relation to public safety or ones income status. The default cannot simply be detention. District court judges need to wrap their heads around that.

Meghan Ellis and John Sebastian (meghan.ellis@ubalt.edu and john.sebastian@ubalt.edu) are student attorneys practicing in the Pretrial Justice Clinic at the University of Baltimore School of Law. Students J. Ethan Clasing, Andrew Cryan, Theresa Grisez, Charlie Kerr, Arien Parham and Christy Watts also contributed to this op-ed.