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With cash bail down and releases up, stakeholders turn attention to pretrial services

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More than a year into Maryland’s bail reform efforts, supporters and observers are pleased the use of cash bail continues to fall drastically.

“We’re saving money for every person that is not in jail and that person is able to go to work, take care of their family and go about their life rather than sitting in jail at the taxpayers’ expense,” said Maryland Attorney General Brian E. Frosh. “That’s a win.”

It was Frosh’s October 2016 opinion suggesting excessive bail likely was unconstitutional that sparked the reform movement. District Court of Maryland Chief Judge John P. Morrissey within weeks wrote an advisory letter that immediately impacted the behavior of commissioners at initial appearances. Release rates increases and the use of bail fell even before the rule, which codified Morrissey’s letter, went into effect July 1, 2017.

Approximately 40 percent of criminal cases before a district court commissioner in 2016 were assigned cash bail prior to Morrissey’s letter, according to data provided by the Maryland Judiciary. By December, it was approximately 25 percent. Statewide since July 2017, approximately 14 percent of initial appearances result in cash bail.

“We are delivering better justice,” Frosh said.

The number of individuals released on their own recognizance and with unsecured bond in criminal cases, which does not require payment up-front, has increased from an average of 44 percent in July, August and September 2016 to around 55 percent this year.

Another 8-to-10 percent of individuals are then released after their bail is reviewed by a district court judge.

“I think the numbers have moved the way we’ve expected and hoped that they’d move,” Morrissey said last week. “I think we’re hitting the new normal right now.”

Brian Saccenti, head of the appellate division for the Maryland Office of the Public Defender, said the data falls in line with what his office is seeking in court.

“I think it’s not surprising,” he said. “We sort of eternally hope that judges will release more people as opposed to (detaining them). We are consistently advocating for alternatives to pretrial detention and we think progress is being made, more progress needs to happen.”

Despite more releases, the failure to appear rate for defendants has held steady over the last two years, generally remaining between 8 and 11 percent.

“I think that would make a big difference,” said Colin Starger, co-director of the Pretrial Justice Clinic at the University of Baltimore School of Law. “I think when judges start to see that FTA rates haven’t gone through the roof, that the sky hasn’t fallen, they may be more comfortable releasing people.”

No-bond detentions

With the decline in cash bail and increase in released defendants, however, came a dramatic increase in the percentage of cases where someone is held without bond.

In the last year, approximately one quarter of individuals were held without bond in criminal cases after an initial appearance. After a bail review, that number fell to between 15 and 17 percent.

Two years ago, however, less than 10 percent of initial appearances resulted in someone being held without bond.

Starger said the shift is a concern but no reason to panic, as commissioners and judges are still adapting to the new rule and learning what release conditions are effective. Many people being held now would also have been held under the previous system – just with a high bond too high to pay.

“Now, we’re being more honest about what the system always was,” Starger said. “Effectively, there were people being held on unaffordable bail for a long time and they had a bail, but it was fiction. They couldn’t afford it.”

Morrissey and Frosh both said the no-bond increase was expected because it accounts for the high-dollar bonds previously assigned when a judge thought someone was a flight risk or danger to the community.

“That makes sense because if you’re putting a million-dollar bond on someone, you’re worried they’re going to do something,” Morrissey said. “If you’re a million dollars’ worth of worried about an individual, you probably shouldn’t be releasing them.”

This is consistent with the wording of the rule, which says release is permitted unless the judicial officer determines there is a reasonable likelihood the defendant will not appear when required or will be a danger.

Saccenti said the system has stopped using the “fiction” of a high bond to hold people but some are still being detained for months before trial and it can take weeks for a defense attorney to petition to have bail revisited.

“Either way, they’re stuck,” he said. “That’s a real concern for us.”

Monitoring options

While there is agreement on the success so far of the new rule, there also is agreement the missing piece to continue raising release rates is robust pretrial services throughout the state.

“Our goal is to ensure that these pretrial systems are as beefed up as we can to ensure the success of the rule,” said Sen. Robert A. “Bobby” Zirkin, D-Baltimore County. “Our focus… is to continue to augment pretrial services like mental health and drug treatment and to assist the Judiciary in making this a success.”

Zirkin, who chairs the Senate Judicial Proceedings Committee, said his concern about bail reform was “wiping away” the system without a replacement ready. The best thing the General Assembly can do in the 2019 session, he added, is give judges more tools to allow them to release people with reasonable conditions.

“If you can accomplish all of that and do away with bail, that’s great,” he said.

Frosh acknowledged getting better pretrial services are key to continued bail reform.

“We don’t have it fixed,” he said. “In order to fix it, we need robust pretrial systems in every single county.”

Morrissey said as pretrial services grows throughout the state and provides more options, release rates and failure-to-appear rates may further decrease.

“I haven’t heard from any judges specifically about that but I think all judges would agree that the more options we have, the better the system works,” he said.

Starger took a longer view, noting the entire system has undergone a radical change in short order after relying on money bail for a long time.

“When such great strides are made to change a practice that quite frankly wasn’t fair but has to be replaced with something, judges are struggling to figure out what that something is right now,” he said.

Saccenti said more tools for judges would be “incredibly helpful” to reduce pretrial detention.

“I think it’s fair to say that a lot of judges are looking for options, looking for good alternatives to detention and the system should be about providing them those alternatives,” he said.


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