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Is this bail reform?

A push by top legal officials in Md. against burdensome bail is backfiring, some defense attorneys say.
More are being denied bail.

Story by Heather Cobun

Data visualizations by Jason Whong

See maps and charts below

Criminal justice reforms designed to let more Maryland defendants be released without posting exorbitant bail have had an unintended consequence: The proportion of defendants denied bail has sharply increased.

More defendants are being released without having to post bail — the goal of advocates who supported a change to the Maryland Rules on pretrial release earlier this year. But many criminal defense lawyers say judges and commissioners now decline to set bail when it would be appropriate, choosing instead to hold defendants for any alleged crimes of violence.

In some regions, the proportion of individuals being denied bail has more than doubled since October, according to a Daily Record review of months of data from district courts.

Attorneys who have seen these shifts play out in courtrooms are lamenting the disappearing middle ground between release and no bond.

“It’s become, too often, this binary either/or,” said John Phoebus, who practices on the Eastern Shore.”

Baltimore lawyer Margaret Mead said a concern about the prospect of a defendant committing another crime after posting bond may have also made judicial officers overly cautious when faced with an allegation of a violent crime.

“I think a lot of judges are taking the attitude that nobody wants to be in the newspaper,” she said.

John P. Morrissey, Chief Judge, District Court of Maryland. (The Daily Record/Maxmilian Franz)

John P. Morrissey, Chief Judge, District Court of Maryland. (The Daily Record/Maxmilian Franz)

In the seven months since District Court Chief Judge John P. Morrissey wrote a letter to judges and court commissioners reminding them of the purpose of financial conditions, fewer people have been assigned secured bond, according to a review of data from Maryland’s 12 district court districts provided to The Daily Record by the Judiciary.

Statewide, slightly fewer than half of people arrested between July and September of last year were released on their own recognizance or on unsecured bond at their initial appearance in front of a commissioner. After Morrissey’s advice letter, issued in late October after Attorney General Brian E. Frosh issued an opinion questioning the constitutionality of Maryland’s bail system, that percentage increased to slightly greater than 50 percent and as high as 53 percent in May.

Over that same period, however, the portion of arrestees held without bond has also trended up notably, rising from around 7 percent to as high as 15 percent.

“Much of the increase in the release rates can be attributed to a more focused consideration of a person’s financial condition and reliance on the requirement to use the least onerous means of release,” Morrissey said in an emailed statement. “Much of the increase in the use of preventative detention is recognition that financial conditions of release have no relevance to community safety.”

Morrissey also noted that the data only reflects initial appearances conducted by commissioners, who sometimes do not have discretion for certain crimes, and does not show any change to bail status made by a judge at a bail review hearing. The Judiciary is working to develop data to track judges’ reviews of the commissioners’ initial determinations, which currently must be tracked manually.

Detentions rise in Baltimore

The outcome of a defendant’s initial appearance can vary depending on where they are in the state, with some jurisdictions seeing more dramatic swings.

In Baltimore city, which has one of the highest arrest volumes among jurisdictions in the state, the percentage of arrestees held without bond increased from around 10 percent between July and October to between 11 and 14 percent between November and February. In March, 17 percent of the 2,383 people with an initial appearance were held without bond.

Melissa Rothstein, director of policy and development at the Maryland Office of the Public Defender, said judges do seem to be changing their approach to bail. She stressed that it’s too soon to know if they are being influenced by the advice letter or in anticipation of a new rule adopted by the Court of Appeals, effective July 1, instructing judicial officers to prefer non-financial condition to ensure a defendant shows up for trial.

But Baltimore attorney Catherine Flynn said she has seen recent first-time offenders be held where in the past they would have been given a relatively high bond, a change she attributed to Morrissey’s advice letter.

“There are certainly some cases which call for a no bail and some cases where setting a bond is an assurance of showing up,” she said. “But in an effort to help defendants, I think (the reform) has backfired.”

Eastern Shore trends

Jurisdictions on the Eastern Shore have also seen stark increases in the percentage of arrestees being held. Prior to October, between 4 and 6 percent of the people arrested in Dorchester, Somerset, Wicomico and Worcester counties – District 2 – were held without bail. After October, between 10 and 15 percent were.

Judges have created a dichotomy at bail review hearings between release and no bond, according to Phoebus, of Anthenelli, Phoebus & Hickman LLC., who practices in Somerset and Wicomico counties.

Getting rid of extremely high bonds, which were “de facto” held without bonds, is not the issue, he said; rather, it is getting harder for attorneys to get their clients reasonable secured bond amounts in serious cases. Sometimes, Phoebus said, he has observed bail review hearings where a commissioner’s bond amount is changed to no bond, which has led public defenders to decline the automatic review by a district court judge.

“I don’t think the criticism is, we’ve gotten rid of the six-figure, the seven-figure bonds,” he said. “It’s the sweet-spot bonds.”

In District 3, comprising Caroline, Cecil, Kent, Queen Anne’s and Talbot counties, nearly one quarter of arrestees were held without bond between November and March.

Del. Michael D. Smigiel Sr. was critical of the Judiciary for amending the rule rather than deferring to the legislature.

Del. Michael D. Smigiel Sr. was critical of the Judiciary for amending the rule rather than deferring to the legislature. (The Daily Record / Maximilian Franz)

More people are being held than have been in the past, according to former state Del. Michael D. Smigiel Sr., who was critical of the Judiciary for amending the rule rather than deferring to the legislature.

“It’s having the exact opposite effect of what those who jumped in without thinking about it wanted to happen,” he said. “You’re either held or released is what it is, where you used to have the opportunity to (set a bond).”

The Judiciary’s data on initial appearances matches what he has seen in court, according to Smigiel, who said judges are holding people based on how dangerous they are viewed.

Violent crimes

The cases where the shift in policy are most apparent are those where the defendant is charged with a violent crime, sometimes not even a felony, and the judge determines they are too dangerous to be released on bond.

During a bail review docket hearing Wednesday in Baltimore city, Judge Kevin M. Wilson saw several defendants facing second-degree assault charges stemming from domestic incidents. Depending upon the facts of the case and any history of violent offenses or failing to appear for trial, the defendants were released, given bail or held. Wilson evaluated the allegations in each second-degree assault case – despite it being a misdemeanor charge – and if the defendant had any history that concerned him did not hesitate to assign no bail.

Wilson’s rationale in cases alleging a violent crime reflects what attorneys say judges are doing more and more in court.

Flynn, a Baltimore solo practitioner, said she has seen people charged with misdemeanors in domestic violence cases be held and court commissioners saying they have no choice.

“If there’s any allegation of a crime of violence, the commissioners and the court are holding people no bail and basically saying that’s the rule,” she said.

Andrew V. Jezic, Attorney at Law with Jezic, Krum & Moyse, LLC. (The Daily Record/Maximilian Franz)

Andrew V. Jezic, Attorney at Law with Jezic & Moyse, LLC. (The Daily Record/Maximilian Franz)

Montgomery County attorney Andrew Jezic said he has noticed an increase in clients charged with violent felonies – often with no record – being held where he believes they would have been assigned a six-figure bond prior to the reform efforts.

“There’s a significant amount of cases for people who have never been charged with anything before who (are) essentially looking at a no-bail system for a serious felony,” said Jezic, of Jezic & Moyse LLC in Silver Spring. “And that is unfair and I can’t imagine that was intended by the rules committee.”

Morrissey said more individuals are being “properly preventatively detained” when a commissioner would have previously assigned a very high bond to reflect risk to the community.

Jezic said the new rule is “being applied in a wonderful way” in the vast majority of cases, as demonstrated by the increase in people being released, but the bail reform debate appears to have created a new culture of denying bond in violent felony cases.

“The $100,000 bails should be alive and well under the new rule and not disfavored for violently-charged people with no record,” he said.

There can also be collateral consequences for immigrants remaining in custody, according to Jezic, who said they previously would have been bailed out as soon as possible to avoid Immigrations and Customs Enforcement issuing a detainer.

Colin Starger, a professor at University of Baltimore School of Law and co-director of the school’s Pretrial Justice Clinic, said the allegation of a violent crime alone is not enough to prove to a judicial officer that an individual is so dangerous that there is no amount of bail that can ensure the community’s safety.

“I think we’re in a period now where there’s a very real concern with violent crime and everybody on all sides of this issue has to be sensitive to that but I quite strongly believe that pretrial incarceration is not the way to control violent crime,” he said.

‘Cautionary advice’

In October, Morrissey described his letter as “cautionary advice” for setting bail, and reminded judicial officers that defendants should be released on their own recognizance, with or without conditions, unless no conditions could assure their appearance when required and the safety of victims and community. He also noted that financial conditions should not be imposed to keep a defendant in custody, placate public opinion or punish the defendant.

“It’s always been the law,” said Starger, “that somebody shouldn’t be locked up because they’re unable to pay bond. However in practice, that happened a lot, so the rule change was kind of necessary to remind people that that’s always been the law.”

But Del. C.T. Wilson, D-Charles, said judges feel they have no choice but to hold more people since Morrissey’s letter. Wilson, who practices criminal defense in Prince George’s County, said he does not believe the new rule, which contains the same principles, will change anything.

“I know the bond system was broken,” he said. “This just wasn’t the solution because there’s no middle ground,” said Wilson, who practices criminal defense in Prince George’s County.

Judges previously would have bond levels they used based on the seriousness of the crime alleged, which Wilson acknowledged was “not quite fair” because it did not account for the defendant’s ability to pay. Now, however, more individuals charged with serious crimes are not being released which makes it difficult for them to assist in their defense.

“It’s a devastating effect on these folks because they don’t have a way to get out,” he said.

Mead, of MeadLaw in Baltimore, said judicial officers have started presuming there should be no bail when a defendant is accused of a violent crime and asking them to prove they are not dangerous when it should be the opposite.

“Held without bail should be the extreme,” she said.

Positive changes

Despite the increase in people being held, the overall trend of more personal recognizance and unsecured bond for individuals is a positive, according to Starger, of UB Law.

“The new rule dealt with a very serious problem… that has to do with poor people accused of low-level crimes spending time in jail because they can’t afford a bail,” he said.

The goal now, he added, should be making sure judicial officers do not solely use the mere accusation of a serious crime to prove a defendant is dangerous and should be held without bond.

“We’re trying to make the arguments and get them heard and accepted on a broader level that you cannot conflate an accusation of dangerousness with clear and convincing proof of dangerousness and that it’s unrealistic to think that all allegations of dangerousness end up with that kind of proof,” he said.

Wilson agreed that a more clear definition of dangerous could help, as well as requiring dangerousness to be proven beyond the allegations in a charging document, which are taken as true at the bail hearing.

“There has to be that middle ground for a judge to say ‘you’re not a flight risk, these are serious crimes, so we’re going to put you at this (bond level),'” he said.

When legislators considered overriding the Judiciary’s new rule, which was approved in the midst of this year’s General Assembly session, Wilson said he cautioned legislators about the impact the new principles were already having.

“This was a pitifully thought-out, knee-jerk reaction to a complex problem,” said Wilson, who said he plans to introduce legislation next year to address defense attorneys’ issues. “The very thing that they are trying to not do, they did.”

Jezic said awareness of the Judiciary’s data hopefully will lead to judicial officers focusing on the rule as it is written.

“I think that we ought to cite the uptick in the statistics, cite the old rule and the new rule and point out that nothing has changed with $100,000 bond,” he said.

Judges will see a presentation on the rule change at their annual meeting later this month, which Mead said she hopes may help them make their bail determinations under the new rule.

“I’m not saying everybody should be released with an apology… but it needs to be fair and equitable and it’s not,” she said.

With the new rule’s preference for non-financial measures to ensure a defendant returns for trial, Flynn said pretrial services need to be able to provide those methods either on its own or in combination with a bond.

“The real problem is a simple allegation of violence is enough to be held no bond and if there were reasonable alternatives, like home detention or rigorous pretrial supervision to assure the court that somebody wasn’t a safety risk or that they would be monitored, that would be great,” she said. “Trust me, my clients would love to pay a bond.”

(After this story was prepared for publication, the Judiciary released new data through May, which can be found in the charts, maps and tables below.)

Download the data in Excel format: Initial-Appearance-Report-Data-Bail-Review-CJM.xlsx

Initial Appearances, July 2016 – May 2017
Month “Initial appearances
IAs” Released Monetary Bail Assigned Held without bail
July 12169 47.6% 41.7% 6.8%
August 12288 46.3% 42.1% 7.2%
September 11778 47.5% 41.6% 7.0%
October 11434 48.6% 38.9% 8.5%
November 10578 54.2% 29.5% 11.9%
December 10185 51.7% 30.8% 12.8%
January 11630 51.8% 30.2% 13.9%
February 11256 53.4% 29.2% 13.3%
March 11986 53.1% 28.7% 14.3%
April 11184 51.8% 29.7% 14.3%
May 11988 53.0% 27.9% 15.0%
Average (Since November) 52.7% 29.4% 13.6%
Released includes no probable cause releases, released on personal recognizance and on unsecured personal bond.
Fugitives are not included in the Held without bail percentage.
Source: Administrative Office of the Courts

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