Case Study in Bail Reform: Maryland

In October 2016 Maryland Attorney General Brian Frosh issued a statement regarding the state’s pretrial detention policy. In the letter, Frosh declared that “setting the bail in an mount not affordable to the defendant, thus effectively denying release, raises a significant risk that the Court of Appeals would find it violates due process.” Undoubtedly the goal of the issuance was to relieve overcrowding in jails, reduce detention costs and produce a system based on equality instead of ability to pay. In reality, Maryland has seen an increase in defendants held without bail, more defendants who have failed to show up for court and a system that is unjust to the disenfranchised.

Increase in Pretrial Detention

A study in Frederick County, Maryland conducted by the Frederick News Post found that after the Attorney General’s statement regarding bail reform, the county saw an increase in those held without bail. The percentage of those held without bail increased from 7 percent to 13 percent according to the newspaper. Across the state the number of those held without bail increased from 10 to 14 percent. Many opponents of the bail reform initiative point to the fact that it lacked clarity and “narrowed the discretion that judges are able to use.”1

A report by the Washington Post concluded that the legislature has failed to set up comprehensive pretrial services giving judges the ability to conduct risk assessments on defendants. Thus a big piece of the puzzle is missing. According to the report, over an eight month period after the reform went into effect “the percentage of defendants held without bond more than doubled, jumping from 7 percent to 15 perfect.”2

Increase in Failure to Appears

The Washington Post also reported that after the issuance of the order, the state saw a significant increase in the number of defendants that failed to show up in court. In January 2017, the rate rose nearly 5 percent over the October failure-to-appear rate.

The large failure to appear rates are likely a result of the state’s hasty reform and failure to set up a subsequent system to handle monitoring and release of defendants. Without comprehensive reform, removing a system that has been in effect since the foundation of our country simply doesn’t work. Bail bondsmen play a crucial role in finding defendants that fail to appear at court at no cost to the taxpayers. Placing this responsibility on overburdened law enforcement agencies and court systems is a recipe for disaster unless there is a realistic plan with a realistic budget.

Increase in Injustice

Finally, Maryland’s experiment in bail reform has done little to help create an equal playing field for poor and minorities. Democratic state delegate C.T. Wilson, speaking to the Washington Post stated that “What has been done has had a more detrimental impact on African-Americans in the system.” Wilson is a criminal defense attorney and member of the Legislative Black Caucus. He opposed the bail changes instead supporting a pro-bail bill.

What is clear from the example in Maryland is that a knee-jerk reaction to inequality in the justice system does not have the intended results and could actually do the exact opposite leaving more people in jail, costing the taxpayers more money and increasing the fugitive rates. Bail has played an essential role in the American justice system for centuries. Taking away a judge’s discretion to release a defendant under certain conditions does not solve the problem, and may, in fact, produce many more problems.

1. https://www.fredericknewspost.com/news/crime_and_justice/courts/county-sees-spike-in-defendants-held-without-bail/article_75a7bb7d-0a3c-5427-b72d-e5bbe55c51f1.html
2. https://www.washingtonpost.com/local/md-politics/jury-still-out-on-marylands-new-bail-rules/2017/07/03/db57a084-5a8c-11e7-9b7d-14576dc0f39d_story.html?noredirect=on&utm_term=.852754f00bd9

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Gloria Mitchell

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