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Prince George’s pretrial system needs improvement, federal judge says

A federal judge made the comments as he considered requests to dismiss a lawsuit challenging the constitutionality of the court’s bond review process and the Maryland county’s pretrial release program

People formerly and currently held in the Prince George’s County jail in Maryland have sued, challenging the bail review and pretrial process. (Linda Davidson/The Washington Post)

A federal judge in Maryland chastised Prince George’s County officials Tuesday, saying that they should have a more efficient and transparent process for evaluating inmates who have been authorized for release from jail while awaiting trial and that “simple” changes could improve the system.

U.S. District Judge Peter J. Messitte made the comments as he weighed requests to dismiss a lawsuit challenging the constitutionality of the court’s bond review process and the county’s pretrial release program. The complaint was filed in July by people currently or previously detained at the Prince George’s County jail.

The plaintiffs allege that they and potentially hundreds of others were illegally detained for weeks or months before their trials — even after judges ordered or authorized their release.

The county, the leaders of its corrections department, and 11 Prince George’s County judges who oversaw the plaintiff’s bond hearings are named as defendants.

Lawyers for the defendants argued Tuesday during a hearing that the entire lawsuit should be rejected, claiming judicial immunity and asserting that a federal court had no jurisdiction over the issues. Suing individual judges is rare in litigation, in large part because judges are covered by legal protections aimed at preserving judicial independence. But those protections also limit the public’s ability to hold judges directly accountable through the courts.

Judges ordered their release from jail. They weren’t let out, lawsuit says.

The attorneys also argued that the claims in the lawsuit are “moot” because many of the plaintiffs have been released from jail by now and, they argue, are no longer suffering harm.

The county also said that the plaintiffs’ due process rights could not have been violated because a pretrial release program is not required under the U.S. Constitution.

“Because the jail offers this alternative potential for release it is confounding why plaintiffs would complain about it. The jail is under no obligation to offer the service,” the county wrote in one footnote. “The familiar sayings of ‘Don’t bite the hand that feeds you’ and ‘Be careful what you ask for’ come to the forefront of one’s mind under these circumstances.”

Meanwhile, there have been widespread calls for bail reform, nationally and in Maryland, where the courts have issued guidance to judges about limiting their use of cash bail. Prosecutors in Prince George’s also no longer recommend cash bail during bond hearings, a policy of the state’s attorney’s office.

But what has happened since, experts say, is a collapse of the system of alternatives to cash bail, such as pretrial release programs, which they say are not equipped to handle the additional case burden.

“You can still have a situation where you end cash bail or limit cash bail and large amounts of people are still being held anyway,” said Michael Collins, the senior director for government affairs at Color of Change. “It’s not just eliminating cash bail, but going beyond cash bail and thinking about pretrial reform more holistically.”

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Messitte did not immediately comment on the substance of the allegations in the lawsuit about bond hearings and the pretrial program, saying his primary objective at that point in the case was determining “whether this court has any business in it at all.”

But he briefly told county attorneys at the end of the hours-long hearing that many of the issues outlined in the lawsuit could be addressed with small changes to their pretrial release system.

“These are all sort of simple things I’m hearing,” Messitte said of the plaintiffs’ allegations about shortcomings in the pretrial release program. “... I hope the county will take some of this to heart.”

The lawsuit, filed in U.S. District Court in Maryland, alleges that during bond review hearings in Prince George’s County district and circuit courts, judges have ordered, or at least permitted, those charged with crimes to be released from jail pending trial. But in the process, the suit says, those judges have “abdicated their constitutional duty” and unlawfully deferred to the county jail’s pretrial services program to determine what level of supervision people should receive — or whether they should be released at all.

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The suit alleges that those authorized by judges for pretrial release end up languishing in jail for weeks or months because pretrial services never make determinations in the cases, and that the processes are opaque or are bogged down in backlogs.

The legal back-and-forth has revived old tensions between the judiciary and community watchdog groups that monitor bail proceedings in Prince George’s County, primarily Courtwatch PG — whose volunteers and supporters were in the federal courtroom in Greenbelt on Tuesday afternoon.

The plaintiffs’ attorneys — Civil Rights Corps, the WilmerHale law firm and Georgetown University Law Center Institute for Constitutional Advocacy and Protection — worked closely with public defenders and Courtwatch PG to formulate the lawsuit.

Courtwatch PG Director Carmen Johnson said her volunteers were offended by assertions the county made in its court filings.

“It is troubling that the Plaintiffs and local Public Defender’s Office did not approach the Defendants on an informal basis to try to resolve their concerns,” the county wrote. “Instead, they amassed an army of volunteers, untrained in the law, to watch bond review hearings and make observations and impassioned complaints about them that have little or no legal import ... and then ambushed both judiciary and County with this lawsuit.”

The lawsuit was “vexatious” and volunteers were “at war with the system,” the county said.

Courtwatch PG volunteers say this characterization of their work stings and is inaccurate.

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For nearly three years, volunteer observers with Courtwatch PG have been observing daily bond hearings, meticulously documenting what plays out in each case and logging their findings into databases that they use to identify patterns and problems to be addressed.

The program grew exponentially in the summer of 2020 as the pandemic and racial justice uprisings spurred many people into action, and Courtwatch PG volunteers also started writing weekly accountability letters to public officials — state lawmakers, county officials, the state’s attorney, the public defender and the judiciary.

Many of those letters flagged problems with the bail review and pretrial release process dozens of times, court observers said. Again and again, they said, officials ignored their concerns.

“We’re not the enemy; we’re not trying to go to war. We come in peace,” Johnson said. “We didn’t ambush them on this. We’ve been doing accountability letters on pretrial for over a year.”

Her court observers, she said, receive training and are required to observe before they are allowed formally to begin submitting data. Even then, the court observers come together in debriefing sessions to compare notes.

“These are not just some people off the block doing court watch,” Johnson said. “We are professionals.”

Johnson, who has been incarcerated, is a paralegal. Her Courtwatch PG team includes retired lawyers, teachers, college students, law school students, former college professors with PhDs, community organizers and the Grammy-winning musician Fiona Apple.

“They try to make us seem like idiots. And we’re not,” Apple said in an interview. “We’re trying to be good neighbors. That’s all we’re doing.”

Apple started volunteering with Courtwatch PG nearly two years ago and became the face of the group’s push last year during Maryland’s state legislative session to pass a bill that would enshrine in law virtual access to the courts. The bill ultimately failed after pushback from the judiciary, but the effort shed light on a nationwide campaign by groups similar to Courtwatch PG to bring about greater transparency and access to the courts.

“If they wanted transparency and accountability, they wouldn’t be fighting this. They would be working with us,” Apple said. “They don’t want to admit what they did, because they don’t want to be forced to change. They’ve got all the power, and they’re saying we’re waging war on them?”

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