A rule intended to reduce the jail population and eliminate excessive cash bails for the poor in Maryland has actually resulted in more defendants being detained without the option of pretrial release, according to a recent report by groups advocating the end of mass incarceration.
The June 21 report, which analyzed pretrial jail populations in Prince George’s County before and after bail reform was implemented in 2017, suggests that while cash bails have decreased, judges have opted to hold more people without bond instead of releasing them on their own recognizance.
The increase in “no-bail” holds violates the spirit of rules that the Maryland Court of Appeals adopted to address concerns over racial and financial inequities in the cash-bail system, public defenders and advocates say.
“The judicial rule change was a significant first step, but this report shows how far we have to go: the jail population has stayed the same, the burden still disproportionately affects the black community, and more and more people are being held without bond — without a fair hearing,” said Scott Roberts, one of the authors of the report produced by Color of Change and Progressive Maryland. “Maryland Court of Appeals made this rule to address the critical failures of bail in Maryland, but Prince Georgians are still suffering.”
The state changed its cash-bail rules after Maryland Attorney General Brian E. Frosh (D) issued an opinion stating that cash bail is unconstitutional because it unfairly keeps some people in jail for months until trial while others similarly charged can pay to go free. After Frosh’s opinion, the Maryland Court of Appeals told judges they should impose the “least onerous” release conditions unless someone is considered dangerous or a flight risk.
The trends found in the June report track similar findings from studies conducted by Princeton University and the Maryland Office of the Public Defender as well as anecdotal observations from local public defenders.
The Office of the Public Defender in March said court observers “generally felt that too many people were held without bail, but were also sympathetic to the lack of options available to judges” and noted judges’ frustrations over their limited choices.
For the June report, Colin Starger, a law professor and co-director of the Pretrial Justice Clinic at the University of Baltimore, analyzed public court records of those arrested in Prince George’s 11 months before and 11 months after the rule on bail reform was implemented.
“The rule was written with a very clear focus that money bail should be the last resort,” Starger said. “In that sense, it’s been a huge success. You’ve seen the rate of money bail go down. The question always was what is going to take its place.”
Starger found that defendants ordered held on cash bail decreased from 61 percent before reform to 50 percent. But those ordered held without bond rose 14.5 percent. “In a time where judges are politically accountable, there’s a fear you’re going to release someone who will go on to commit a crime so there’s a lot of public pressure to detain people,” Starger said.
Starger conducted a similar analysis in Baltimore, where the rates of those held without bond were “going through the roof.” Many of those denied bond were accused of second-degree assaults stemming from fights — cases that in the past probably would have been granted a cash-bail option by judges.
The report called on prosecutors at bail review hearings to recommend release for all defendants charged with misdemeanors and drug offenses unless they are dangerous.
John Erzen, a spokesman for the Prince George’s County State’s Attorney’s Office, said prosecutors have been trained to follow the new bail rule, which the county’s top prosecutor, Angela Alsobrooks, testified in favor of and supported.
“If the person is not a danger to the community and/or a flight risk, prosecutors are instructed to look at all the mitigating factors and consider all of that when recommending a bond amount to the judge,” Erzen said.
Keith Lotridge, the acting district public defender for Prince George’s, said that overall the rule change has resulted in the release of more clients charged with low-level, nonviolent offenses, but there has been a “dramatic increase” in people who have been ordered held without bond pending trial.
Lotridge said the intent of the law was to direct more defendants to alternatives such as monitoring or supervision through pretrial services, not to simply lock up more people without the chance to get out of jail before trial. Lotridge said part of the challenge is that pretrial services does not have the array of resources it needs to handle more people who could be released on their own recognizance.
“Quite a few of our clients will lose their jobs, lose their housing or lose custody of their children” while they’re being jailed,” Lotridge said. “Often some are the single income sources for their families, and they have families displaced because they’re still waiting in jail while they’re still presumed innocent, because they have been charged with something they previously would have been given a bond for.”