Prince George’s County District Court Judge Mark O’Brien spent about an hour on a recent afternoon deciding whether the handcuffed men before him should stay locked up or be released until trial, and under what conditions.
In some ways, O’Brien’sactions reflected a new approach to bail in Maryland — such as when he removed a bail requirement for a man charged with speeding and driving under the influence who had no prior arrests. But in other cases, it was not clear whether the judge was reflecting state guidelines that say to impose the “least onerous” release conditions on suspects not considered a danger or a flight risk.
The rules change by the state’s highest court put Maryland at the forefront of states trying to reduce jail populations and address racial and economic disparities regarding who is locked up. It requires judges to consider a defendant’s ability to pay when setting bail, and has drawn praise from advocates but criticism from bail bondsmen and some tough-on-crime prosecutors and lawmakers.
Although the policy formally took effect this month, it has been unofficially in place since the fall, giving advocates on both sides time to weigh in on whether it is working.
Judges and commissioners have interpreted the change in different ways, according to interviews with advocates, defense attorneys, prosecutors and lawmakers. State data paints a conflicting picture, with some statistics suggesting a jump in people being detained but others showing the jail population declining.
Both supporters and critics say the impact should become clearer over the next year, now that the rules are in effect statewide and defense lawyers canchallenge a judge’s decision to issue bail if a defendant can’t afford it. That option wasn’t available before July 1.
But those watching the process also note that the legislaturehas not acted to set up pretrial services throughout the state,a key component of bail restructuring because it allows judges to assess the risks posed by defendants and offer services including drug treatment, supervision and home detention that are designed to helpdefendants return to their communities while awaiting trial.
“That’s the missing piece in all of this,” said Timothy Maloney, a criminal defense attorney in Prince George’s County who pushed for pretrial restructuring as a state delegate decades ago. “It’s what makes the federal system and D.C. work so well. And I imagine that will be a significant issue in the 2018 session.”
Liberal lawmakers in Maryland — including then-state Sen. Brian Frosh (D) — tried for years to pass a law abolishing bail, without success. They said poor defendants who posed no danger were stuck behind bars awaiting trial because they couldn’t post bond, while others who could find the money got out, even if their records suggested they were likely to commit additional crimes.
Last year Frosh, who became attorney general in 2015,issued an opinion that said the state’s bail system probably was unconstitutional, and asked the state Court of Appeals to consider changing pretrial release rules.
The courts took initial action in November and formally adopted the change inFebruary, saying judges and commissioners should consider a defendant’s ability to pay when setting bail and impose the least onerous conditions when individuals don’t pose a danger or a flight risk.
The bail bond industry, which opposed the changes, said judges and commissioners had begun reducing their use of bail, releasing more defendants on personal recognizance and holding more in jail with no bond, starting with the release of Frosh’s opinion and then a letter from Judge John P. Morrissey in October.
Industry leaders took the issue to state lawmakers, hoping the General Assembly would overturn the court’s decision before it took effect. After a tense legislative battle that pitted members of the state’s powerful Legislative Black Caucus against one another, lawmakers took no action, allowing the court rule to go into effect as planned.
Critics of the court rule say one of their top concerns is that low-risk defendants will not return to court for trial, or that people will be held without bond who should have been released. They also cite cases in which defendants are required to purchase ankle bracelets or other devices so they can be monitored after their release, which in some cases can be more expensive than bail.
“I know the intent [of the Legislative Black Caucus] was to not have as many African American males in jail until their trial date,” said Del. C.T. Wilson (D-Charles), a criminal defense attorney and member of the caucus who supported a pro-bail bill. “What has been done has had a more detrimental impact on African Americans in the system.”
In May, 53 percent of people arrested in Maryland were released before trial on their own recognizance or an unsecured personal bond, according to monthly data compiled bythe state court system. Last September, 47.5 percent were released. Over those eight months, the percentage of defendants held without bond more than doubled, jumping from 7 percent to 15 percent.
“It’s both predicable and appropriate that the numbers would go up,” Frosh said, referring to more low-income people being released without bond and more defendants deemed dangerous or flight risks being refused bond altogether.
According to state data, nearly 1,600 of 11,028 defendants failed to return to court for trial in January 2017. The 14.5 percent failure-to-appear rate was a nearly 5 percent increase over the rate in October, when Morrissey issued his advice letter. It was the highest rate of any month in the data released by the court system, which dates back to January 2016. The data also shows that the percentage of defendants who failed to return to court was higher in the first quarter of 2017 than the first quarter of 2016.
Frosh and other advocates said the statistics indicate that the state is moving in the right direction but also demonstrate a need for more consistency.
“The changes represent another significant step toward equal justice and an even playing field for people with limited money,” said University of Maryland Law School professor Doug Colbert.
Caryn York, policy director of the Baltimore-based Job Opportunities Task Force, blamed some of the increase in defendants being held without bond on the lack of pretrial release services or courts being unaware of services offered. She said the new policy requires court systems to catalogue services available in various jurisdictions, which should demonstrate where more services are needed and, in some cases, help judges feel comfortable releasing more defendants.
“If judges do not have anywhere to send individuals, they are going to hold them,” she said.
Critics of the rules change, however, said the data proves that the courts acted prematurely and the General Assembly should have approved the pro-bail bill that would have overturned the court rule.
Defendants who don’t post bail “don’t have any incentive to come to court other than it’s their duty to come to court,” said Baltimore County State’s Attorney Scott Shellenberger, a conservative Democrat. “They don’t have skin in the game.”
But Shellenberger also said it may be too early to draw conclusions — echoing Morrissey, who said a committee plans to compile and review data after the rules go into effect.
“To be fair, I think we still need a year’s worth of data to compare,” Shellenberger said.
Morrissey said in an email that the data is too broad to show a clear trend. It does not just include people who failed to appear for trial after being released without bond, but also those who were sentenced and failed to appear for a court hearing on a probation violation, or who didn’t show up for a hearing in response to a criminal summons.
At the bail review hearing in Upper Marlboro,O’Brien released a 32-year-old Cameroonian man accused of driving 65 miles per hour in a 30-mile-per-hour zone while intoxicated.The man, who had a green card and was taking college courses, had never been arrested, was recovering from hernia surgery and had been on pain medication, his lawyer said.
The judge set bail at $50,000 for another defendant who had been ordered held without bond. And hekept bail at $5,000 for a 41-year-old man who was accused of violating a protective order and had previous charges of assault, carrying a handgun and violating a protective order.
“I’m tempted to raise it,” O’Brien told the man. “There are two kinds of people. People who obey the order and people who don’t. If they don’t obey our order, we can’t let them get away with it.”