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Defenders decry rise in cash-only bail

Brian G. Thompson, Esq. in his office on January 27.

A Baltimore man was arrested on domestic violence charges on March 2, and the bail commissioner set his bail at $125,000. The next day, a district judge revised that to $50,000, payable in cash only.

The man’s attorney, Brian G. Thompson, who said the victim’s injuries could only be seen at the hospital under special light, filed a petition for habeas corpus. On April 6, a circuit judge increased the bail amount to $100,000 but removed the cash-only requirement.

The defendant’s family arranged for a bail bondsman to post a bond in that amount the same day, allowing the man to walk free after more than a month in jail.

About two weeks ago, on Jan. 14, prosecutors dropped two of the three counts in exchange for the man pleading guilty to the remaining second-degree assault. He was released on time served and must undergo two years of supervised probation.

Thompson said the case is an example of a phenomenon in recent years, especially in Baltimore City: Cash-only or cash-only, by-defendant-only bails result in people sitting in jail for longer than they should before trial and then pleading guilty to avoid more jail time.

“We can’t base a criminal justice system on speculation. What we know is he’s a 40-year-old man with no criminal record,” Thompson said of his recent client.

“We’ve gotten to the point where the judges are going to treat everyone like they’re the one in a 100,000 or one in a million,” he said.

Thompson and other defense attorneys say they have noticed an uptick in bails set in Baltimore City and an increased number of cash bails or “by defendant only” bails. They say these practices are likely motivated by financing practices in the local bail bonds industry and the judges’ desire to play it safe, and have the unfortunate side effect of keeping people in jail for months before they can prove their innocence at trial.

Margaret Mead, another prominent downtown criminal defense attorney, said setting “exorbitant” bails circumvents the spirit of the state’s bail review rule, that is, to ensure the appearance of the defendant at trial and to protect the public in the meantime.

“I think what came first was the bail bondsmen working out deals and I think in response to that, the judges, many of the judges are setting these cash-only bails, which, quite frankly, I couldn’t make them,” Mead said.

There are typically three options when it comes to bails. Judges can require all-cash, allow the option of a corporate surety, or let the defendant post property as collateral. Sometimes a judge will allow the defendant to post cash equal to 10 percent of the bail, which is refunded upon the defendant’s appearance at trial.

“Is it the least onerous condition of release as the law requires? Is it affordable?”  University of Maryland School of Law Professor Douglas Colbert asked. “Sometimes, cash-only will be the toughest condition; other times, it saves the family from paying an expensive bondsman the expensive 10 percent fee. It depends on the amount.”

While Colbert and others pushed for better advertisement of the 10-percent cash option some years ago, in some cases cash has become the requirement. And it’s not for 10 percent of the bail — it’s for the whole thing.

“It’s just not fair,” Mead said. “The past year it has gotten progressively worse.”

Judge’s discretion

Jerome LaCorte, headquarters supervisor at Central Booking for the Office of the Public Defender for the past five years, agreed with Mead that the financing practices of the bail bond industry have influenced the judges.

While the bail bond industry used to require 10 percent of the bond amount upfront, in recent years they have begun to write bonds with as little as 1 percent down and a financing agreement on the other 9 percent. In other words, on a $100,000 bond, the defendant can be out of jail with as little as $1,000.

“I believe that’s why they do it,” LaCorte said of judges setting cash-only bails. “I’ve really seen that explode within the past two years.”

Brian J. Frank, president of Lexington National Insurance Corp., a major bail bond insurer headquartered across the street from the Baltimore City Circuit Court, did not return a call for comment last week.

Regardless of the reason, James Rhodes, another Baltimore criminal defense attorney, also has noticed more cash bails.
“I don’t know why it is,” he said, but he has heard rumors that commissioners and pretrial services are “supposed to recommend extremely high bails,” he said.

Several people interviewed for this story mentioned Judge Jack I. Lesser as one of the biggest proponents of the cash-only, by-defendant-only bail. Judge Lesser did not respond to a call for comment Friday.

Baltimore City District Administrative Judge John H. Hargrove Jr. said he could not speak for any of his 26 colleagues but generally speaking, “A judge has a lot of discretion under the rules to set a bail and set the terms of the release, has a lot of latitude, so one of the things they can do is prescribe how it’s posted,” he said.

However, “I would suggest to you that you’re not going to find a whole lot” of cash-only, by-defendant-only bails. In fact, Hargrove, who presides over bail reviews once or twice a week, said he “used to see it more often.”

Hargrove declined to comment on any cause-and-effect relationship with the bail bond industry’s willingness to take as little as one percent of the bail amount to spring a defendant from behind bars. But he did say defense attorneys, prosecutors and the news media often emphasize only part of the picture.

Members of the defense bar, like Professor Colbert, think the bails are too high. “And then on the flip side, you got the Page Croyders and the prosecutors and they all rail in the press about how bails are too low and people are getting out,” Hargrove said this week.

“So there are any number of influences that may affect the judge’s decision as to how they set a bail — it’s not any one thing,” Hargrove said. “My opinion? My judges do what they think is the right thing based on the totality of the circumstances and the facts that are before them in a particular case.”

“It’s a hell of a balance,” Hargrove said. “Bail issues are tough, tough, tough.”

A spokesman for newly minted Baltimore City State’s Attorney Gregg L. Bernstein spoke of a differentiated approach to bail.

For repeat, violent offenders, “We are pushing very hard for increased bails or no bail at all because they’re a risk to the community and they’re a risk of flight,” said Mark Cheshire, the spokesman.

Cheshire noted the percentage of violent, repeat offenders who were not released has increased each of the last 6 years, rising from 81.4 percent in 2007 to 85.9 percent last year.

“At the other end of that criminal spectrum … State’s Attorney Bernstein is looking for alternatives,” such as counseling, Cheshire said, so nonviolent drug users or people accused of minor crimes don’t “languish” behind bars.

Thompson, who represents both criminal defendants and Big Boyz Bail Bonds, is so mad about the current state of bails in his Baltimore clients’ cases recently that he typed out nearly 3,000 words on the subject in a post on his firm blog last month. The headline: “Child Abuse Defendant Railroaded into Plea by Outrageous Bail Ruling.”

Thompson told of a couple accused of roughly disciplining the man’s teenage daughter and how, due to a series of adverse bail rulings, they ended up pleading guilty because it meant the father would be released from jail. Though the 35-year-old Jamaican immigrant had no criminal history, he had been held on no bail, until a circuit court judge revised that to a $1 million bail.

Judges have “lost all perspective,” Thompson said.

“It’s just gone crazy,” he said. “It’s like every judge is trying to one-up the next judge.”

Mead, too, said the size of bails “snowballs” “because everybody’s afraid something’s going to happen.”

Retired Baltimore City Circuit Judge John M. Glynn underscored that idea, saying that said concern about violent offenders is the “heart of the problem.”

“As a judge we never get praised for releasing anybody. You can release a thousand people and they do fine but the one person who you release and commits a violent crime and you get press,” said Glynn, who was a district judge from 1994 to 2001 and presided over bail reviews at Central Booking during that time.

Risk-averse

Many people interviewed for this story pointed to the case of Demetrius Williams, which came before Baltimore District Judge Nathan Braverman in July 2008, as a cautionary tale.

Williams had been locked up for first-degree murder, a bail commissioner held him with no bail, but Braverman let him out on $350,000 bail. The next month, while out on bail, Williams shot a man during a robbery. The case became a media sensation.

“The judges who get trashed are those who try to treat every defendant and every party like a human being,” Judge Glynn said. “And if you do that, you’re running a risk.”

“It’s a hard problem,” LaCorte acknowledged.

“You got on the one hand the right to a bail that’s not unreasonable, that’s in the Eighth Amendment,” he said.

But on the other hand, “I think many judges are concerned that the allegations against defendants are of concern when it comes to the public safety. And you also have defendants who have, for whatever reason, a history of failing to appear in court.”

“Judges have to balance that,” LaCorte said. “As far as an easy fix, I don’t know that there is one.”