A group of Maryland lawmakers is vowing to abolish cash bail for poor defendants, and an opinion issued Tuesday by the state attorney general’s office on the constitutionality of the policy may be the backing they need to do so.
In an 11-page opinion, Sandra Benson Brantley, counsel to the General Assembly, wrote that the current system, which sets bails at amounts many defendants can’t afford, could violate due process.
“If pretrial detention is not justified yet bail is set out of reach financially for the defendant,” the opinion said, “it is also likely the Court would declare that the bail is excessive under the Eighth Amendment of the U.S. Constitution,” which prohibits the government from imposing excessive fines or cruel and unusual punishment.
State lawmakers have argued that the current system, which leaves defendants in jail for months awaiting trial, is discriminatory and unfair. If the state was to do away with the cash bail system, Maryland would join a handful of other states, including Kentucky and New Jersey, that have enacted pretrial detention reform.
Kentucky eliminated cash bail and replaced the system with one that focuses on risk assessments. Other jurisdictions have also done away with cash bail after lawsuits were filed. Several cities in Mississippi, including Jackson, stopped using cash bail in misdemeanor cases as part of a settlement.
“I think [the opinion] makes it very clear that our system of money bail is out of step,” said Del. Kathleen M. Dumais (D-Montgomery), who sponsored a bill during the 2016 legislative session to implement reforms. “I’d like to see Maryland be a leader and that money bail is only used in extreme cases when there is a concern for public safety. . . . I think this opinion helps us turn the page.”
Dumais, Del. Erek L. Barron (D-Prince George’s), Del. Shelly L. Hettleman (D-Baltimore), Del. Marc A. Korman (D-Montgomery) and Del. Brooke E. Lierman (D-Baltimore) sent a joint letter to Attorney General Brian E. Frosh in August asking him to weigh in on whether setting bail, without considering whether a defendant could afford to pay, was a violation of the equal protection and due process clauses under the 14th Amendment.
Dumais said pretrial reform should be the “next step” in the state’s efforts to improve criminal justice. Earlier this year, lawmakers passed a far-reaching criminal justice bill that eliminates mandatory-minimum sentences for nonviolent drug offenders, increases penalties for several violent crimes and allows some nonviolent criminals to be released from prison earlier.
“We want a system that is fair,” Barron said. “We’re talking about people who are presumed innocent.”
Several high-profile national cases have pushed the issue to the forefront. Among them was the detention of a teenager who was accused of smashing a car window during the Freddie Gray protests in Baltimore. The 18-year-old was detained on a $500,000 bail, which was higher than the bail set for the six officers charged in Gray’s death. Advocates also point to the case of Kalief Browder, who was imprisoned without conviction at age 16, accused of stealing a backpack. Browder spent three years at Rikers Island, much of it in solitary confinement. He committed suicide last year.
In Maryland, 86 percent of felony defendants with bonds remain in jail waiting for their cases to be heard because they can’t make bail. Nationally, about 47 percent of felony defendants remain jailed because they can’t afford bail.
Studies by the Pretrial Justice Institute have found that the cash bail system disproportionately affects African Americans and Hispanics. They also have found that defendants in jail waiting for trial are more likely to plead guilty, even if they are not guilty, to get released sooner.
“It’s a very substantial problem, and its ripple effect is very significant,” said Marc Mauer, executive director of the Sentencing Project. “It’s money buying justice; money buying freedom.”
Mauer said those who can afford bail can return to work and build a “good record.” Those who spend their time in jail awaiting trial, Mauer said, lose their jobs, leaving a negative impression on judges.
“No judge is going to say it out loud, but it’s almost inevitable,” Mauer said. “They think: It’s not much of a loss to the community if this person is sent to prison.”
Advocates have been pushing for bail reform in Maryland for years.
Two panels — the Task Force to Study the Laws and Policies Relating to Representation of Indigent Criminal Defendants and the Governor’s Commission to Reform Maryland’s Pretrial System — have explored the issue, but neither resulted in abolishing cash bail.
Marc Schindler, the executive director at the Justice Policy Institute, said Maryland has been “behind the curve” on bail reform in the region and across the nation.
For two decades, judges in the District have released defendants without requiring them to leave any money behind. Those who are arrested have to promise to return to court and oftentimes agree to drug testing or to check in with a pretrial officer.
In 2003, Virginia became the first state to test and implement a pretrial risk assessment tool. The state funds local pretrial services programs across the state.
Last year in Maryland, the Justice Reinvestment Coordinating Council had some spirited discussions about the challenges that poor defendants face under the current bail system and the impact their inability to pay bail can ultimately have on sentencing.
Many of the members of the panel pushed for pretrial reform to be included in the panel’s recommendations to the General Assembly. But, in the end, other members of the council said changes to the bail system went beyond the scope of the panel and the issue was shelved.
Schindler said pretrial reform should have been part of the landmark legislation, given its role in sentencing.
“What happens at the front end is a big driver” of prison costs, he said.
The Justice Policy Institute conducted a study in 2010 that found that Maryland, which operates the jails in Baltimore City, would save a significant amount of money under bail reform. According to the study, the state at the time estimated that it cost $100 a day to house a person in the Detention Center and $159 a day in Central Booking.
Meanwhile, the institute estimated the cost of pretrial release services to be $2.50 per person per day.