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Unconstitutional detention

This piece originally appeared in The Baltimore Sun.

There is only one acceptable purpose for requiring a cash payment as a condition for bail: as an incentive for the defendant to return to court. It's not meant to prevent someone's release from jail pending trial, nor to protect the public good. It is simply the price of freedom for someone who is charged with a crime but not considered enough of a danger or flight risk to require imprisonment before adjudication. The outlay is supposed to be large enough to hurt if it's lost but not so big that someone can't pull together the amount.

Yet in Maryland, particularly in Baltimore, it's the sole reason thousands of non-violent offenders sit behind bars each year waiting for their cases to come to court. In 2015, more than 8,000 poor people were jailed in the city prior to trial — at a cost to taxpayers of between $100 and $159 per day — because they couldn't afford the cash amounts linked to their release, sometimes as little as a few hundred dollars. The imprisonment cost them jobs, relationships and time they'll never get back.

This week, Maryland's attorney general said such detention is likely unconstitutional. In an opinion dated Oct. 11, Brian Frosh wrote that courts would probably find that a "judicial officer may not impose a financial condition set solely to detain the defendant" and that such conditions violate the 5th and 8th amendments to the U.S. Constitution. Maryland law and court rules also appear to require that a judicial officer "conduct an individualized inquiry into a criminal defendant's ability to pay a financial condition of pretrial release" prior to setting it, he wrote.

The ball is now in the judiciary's court (pardon the pun). We would urge the Judicial Conference's Rules Committee to take up the issue and set a policy of "individualized inquiry" as soon as possible, and for every bail commissioner and bail review judge to implement the practice immediately. Too many judges, it would seem, are setting amounts based on the severity or notoriety of the alleged crime rather than the criminal. That's how freedom for the six police officers charged in the death of Freddie Gray — none of them exactly flight risks with violent histories — was priced at between $250,000 and $350,000. If they were really that dangerous, they shouldn't have been allowed release at all.

That's the short term. In the longer term, we yet again call for a complete system overhaul, as have, in recent years, the Justice Policy Institute, the Abell Foundation, a state task force and a Maryland governor's commission. Defendant release should be based on risk, preferably determined by an objective tool, with the least onerous conditions attached to ensure return to court and the safety of any victims and the public.

That's how Washington D.C. does it. Most of its defendants — 85 percent — are released with conditions that correspond to their levels of risk, such as monitoring, rather than finances. To get there, Maryland would have to invest in improved pretrial release programs and technology, both of which should pay for themselves once we're not unnecessarily jailing people.

The bail bonds industry, understandably, is not a fan of this approach. High bail amounts are their bread and butter, and they're happy to share the spoils with lawmakers in Annapolis in the form of campaign contributions. They put up the bail amount for defendants (which they get back later) in exchange for a non-refundable fee of about 10 percent (though sometimes as low as 1 percent with promissory notes supposedly guaranteeing the difference). So the higher the bail, the higher the profit. They also contribute to the problem by allowing defendants to secure release for a fraction of the price judges set, leading to even higher prices.

It's not complicated. Society does better when people who don't need to be jailed aren't. So let's just stop.

This piece originally appeared in The Baltimore Sun.

Posted in JPI in the News, Criminal Justice News

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