Cherise Fanno Burdeen is chief executive of the Pretrial Justice Institute. Marc Schindler is executive director of the Justice Policy Institute.
Maryland Attorney General Brian E. Frosh (D) last month concluded that two key aspects of Maryland’s money-bail practices — the failure to assess a person’s ability to pay before setting money bail and the failure to assess one’s inability to pay resulting in pretrial detention — would not stand up to constitutional scrutiny.
And a legal challenge seems likely. Nearly a dozen localities — places in Alabama, Mississippi, Missouri and more — through civil rights litigation have been forced to change pretrial practices. These lawsuits have resulted in the immediate release of people held on bonds they could not meet and in changes to court policies. The Justice Department even took the rare step of weighing in on one of these cases, echoing Frosh’s assertion: Pretrial detention or release that hinges on an individual’s ability to pay is bad practice and almost certainly unconstitutional.
The attorney general’s opinion offers lawmakers a path to avoid similar litigation. Unless state leaders take action, Maryland could join the jurisdictions that have had changes to bail practice imposed on them. Instead, Maryland legislators should replace the money-based pretrial system with a more effective, less expensive evidence-based approach that results in the nonfinancial release of most people and risk-based detention for the few who are a threat to public safety or of flight.
If one’s liberty is dependent upon the payment of money bail, it is clear that courts have a duty to meaningfully assess the individual’s ability to pay. But looking into every arrested person’s financial assets would be a challenge for a system already stretched thin.
Instead, we should move toward taking money out of the process altogether and use science-based, actuarial risk-assessment tools to better understand the pretrial risks each person poses, like those used in other states and localities. In Maryland, they would show that most people who are arrested are low- or medium-risk and should be released without unnecessary conditions. Some Maryland jurisdictions, including Baltimore City and Harford and Montgomery counties, already incorporate these tools into the pretrial process, but they still assign money bail as a condition of release, rendering the risk-finding essentially moot.
The attorney general also voiced concern about the legality of detaining those who cannot afford the bail amount assigned to them. From the thousands of jailed defendants who cannot pay small bail amounts to the few who make headlines with million-dollar bonds meant to keep them behind bars, this practice is counter to constitutional protections.
The attorney general described the problem simply: “You can’t imprison someone for poverty. For one guy, $1,000 bail is no big deal. For somebody else, they might not have 100 bucks, much less $1,000.”
Again, risk-based pretrial justice provides a solution. Legally, only those for whom no court-ordered condition or set of conditions can ensure compliance upon release should be held. The best way to know who fits this small set of high-risk individuals — typically about 8 percent of defendants — is through risk assessment, combined with judicial discretion. Places such as the District and New Jersey have changed their laws to allow for outright risk-based detention — with due process and transparency — and Maryland should do the same, solving the money-based detention issue.
The attorney general’s office submitted a letter to the judiciary’s rules committee asking for changes to the state’s bail system, bringing pretrial practices more in line with constitutional requirements. This is a step in the right direction, and legislators should follow suit and finally remove money from the process once and for all.
If there’s one lesson Maryland — and other states — can take from the recent bail-related civil rights litigation, it’s that it is better to voluntarily design reform rather than be forced into immediate and costly actions by court rulings. Maryland has a chance to build on several years of state-level work to preemptively improve the state’s pretrial systems. The attorney general’s opinion gives policymakers yet another reason to maintain the momentum to make pretrial justice safer, fairer and more effective in Maryland.
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