In the six months since Maryland’s retooled bail rule went into effect, nearly 60 percent of criminal defendants are being released on their own recognizance or with unsecured bond after appearing in front of a district court commissioner. But the number of arrestees held without bond also increased to approximately 20 percent by the end of last year, according to data provided by the Maryland Judiciary.
The numbers paint an early picture of a rule sparked by Attorney General Brian E. Frosh’s opinion in October 2016 that the state’s bail system was unconstitutional.
Prior to the opinion, less than 50 percent of individuals appearing before a district court commissioner were released on their own recognizance, while the number of people being held without bond was less than 8 percent.
Melissa Rothstein, director of policy and development at the Maryland Office of the Public Defender, said the new rule has not been in effect for very long and an “apples to apples comparison” doesn’t exist in the data yet, but so far more individuals are being released overall.
“We are encouraged by the increase of releases and the decrease of money bail,” she said. “We are seeing more people being held without bail but we’re not seeing the increase in detention rates.”
A November report by the Judiciary concluded the rule is “succeeding in ensuring that lower-level offenders are not detained solely because they cannot afford bail” as well as ensuring potentially dangerous defendants are preventatively detained.
The report was compiled at the request of the General Assembly, and District Court Chief Judge John P. Morrissey is scheduled to provide an update the lawmakers Tuesday morning.
Colin Starger, a professor at University of Baltimore School of Law and co-director of the school’s Pretrial Justice Clinic, noted the new rule has not been in effect for long compared to the commercial bail system, which was the default option for years.
“It makes sense that it’s going to take a minute for the culture to shift,” he said.
The use of money bail has declined significantly in the months since Morrissey sent a letter to judicial officers in October 2016 reminding them of the purpose of financial. Statewide, court commissioners assigned bail in approximately 40 percent of cases before Morrissey’s advice letter; by the end of 2017, it was down to around 20 percent.
“In terms of the pure, ‘We can let you out so long as you can afford this,’ that issue has made tremendous progress,” Rothstein said.
The rule, which was adopted by the Court of Appeals in February, clarifies that judicial officers’ preference should be to impose non-monetary conditions to ensure defendants show up for trial.
“People’s rights didn’t change,” Starger said. “It was just a question of emphasis and it was clarifying the way things had fallen into practice was actually out of step with what the law had always required.”
The rule also instructs commissioners and judges to hold an individual if they find there is a reasonable likelihood they will not appear for trial or will be a danger to the victim or others.
In the months between when the rule was adopted and went into effect, attorneys throughout Maryland noticed a change in their clients’ bail hearing outcomes. Several said clients who would have been assigned a high bond in the past were being held without bail.
In Baltimore city in particular, where approximately 10 percent of defendants were being held without bail at initial appearances in July 2016, more than 30 percent were five months later. At bail reviews, release rates have gone up but the percentage of individuals held without bail by a judge more than doubled in that time period.
“That’s not a problem with the rule, that’s a problem with the implementation of the rule as far as we’re concerned,” Starger said. “We’re not where we should be in Baltimore.”
Rothstein said public defenders continue to believe more people are being detained than should be but noted that the number of bail reviews has not increased, indicating that the people now being held without bail were probably those assigned extremely high bails they could not afford before the rule changed.
“We think there are too many people being held pretrial and whether they’re being held without bail or on money bail, that’s a problem,” she said.
The Judiciary is working to develop a system to track bail review outcomes, according to a spokeswoman. The data can be extracted but must be manually compiled.
The Judiciary’s report states enhanced pretrial services is needed for cases “in the middle of the spectrum where an effective county-based pretrial system would ensure public safety while contemporaneously reducing pretrial jail populations.
Eleven counties have some form of pretrial services, according to the report, and at least five more are looking into it.
Expanding pretrial programs “has to go hand-in-hand with an alternative to the (bail) system that works better, that is more fair, and is not racially biased,” said Larry Stafford Jr., executive director of Progressive Maryland. “Pretrial services programs can provide such an alternative if the support is there, if the funding is there.”
Advocates will seek budget language to fund pretrial services this legislative session, according to Stafford, as well as pushing back against any efforts by the bail bonds industry to push legislation to reverse the rule.
“There are many legislators that do support that kind of change,” Stafford said. “There are probably quite a few that are interested in learning more about what this means and some who we suspect favor the bail industry so we’re going to be working hard to engage and ensure that legislators are educated on what pretrial services can mean for the system around the state.”
Rothstein said in some jurisdictions, community are organizations interested in helping provide services, such as monitoring a defendant’s participation in their program while they are on pretrial release.
She partially attributed the continued use of bail and detention to “a combination of a lack of creativity in terms of really, truly being willing to identify alternatives.”
Starger said training and a focus on the spirit of the new rule should help bring its benefits to more defendants.
“I’m confident that as the effectiveness of pretrial services becomes more widely understood, judges will become more receptive to it,” he said.
Notes: In October 2016, Attorney General Brian Frosh gave opinion that bail might be unconstitutional. Chief Judge John P. Morrissey sent an advice letter on the purpose of bail at the end of October 2016. Releases started to rise after that.
On July 1, 2017, a new rule on bail went into effect.