Pretrial Justice

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Beyond the Algorithm

A new study has been released by The Marshall Project: “Beyond the Algorithm.” This study adds to the debate over racial bias in risk assessment tools widely used in courtrooms, and discusses how pretrial risk assessments can be saved from unintended racism.

Court Observation Project.

On March 12, 2018, the Office of the Public Defender released Bail Reviewed: Report of the Court Observation Project. This report is the culmination of a court observation project in which members of the community observed bail review hearings to learn more about the pretrial process and to gather data about the implementation of a recent court rule change intended to curb the reliance on money bail.

Advancing Bail Reform in Maryland: Progress & Possibilities

Prepared for the Baltimore City and Prince George’s County Branches of the NAACP

This report argues that rather than return to the bail system as it was, Maryland policymakers should continue to build upon the successes of the rule change by strengthening alternatives to bail and pretrial detention.  Read the full report.

Pretrial, Screening, Mental Health and Reentry Services

Maryland Correctional Administrators Association (MCAA) and Maryland Alliance for Justice Reform (MAJR) cooperated to survey local detention centers in November 2017 for an up-to-date report as to what pretrial, screening, mental health and reentry services are currently available at the centers.

Findings are intended to assist the Maryland General Assembly, the Governor’s Office, and other policy makers to determining the scope of financial and other support that may be needed for new or improved county programs. While Baltimore City has not responded, all 23 counties in Maryland have returned their survey.

A report of the survey findings is here.  County-by-county results are also presented in alphabetical order are here.

Steps in the Right Direction– Maryland Counties Leading the Way in Pretrial Services – OSI-Baltimore 2018

As statewide efforts to reform the pretrial system finally gain steam, many Maryland counties have already taken steps in the right direction to introduce or expand pretrial release programs. The results of these local efforts are impressive, demonstrating that a statewide approach that places a priority on community-based pretrial services is effective at ensuring that people return to court while leading to better public safety outcomes and significant cost savings when compared to pretrial incarceration. Read the full report.

What Pretrial Justice Looks Like Without Money Bail

Pretrial decisions guided by assessment instead of money bail produce much better outcomes than current practices do in most jurisdictions. However, money bail and subjective decision-making are so common, many people find it hard to imagine pretrial without them.  A publication from The Thurgood Marshall Institute, What Pretrial Justice Looks Like Without Money Bail, describes in clear, straightforward terms, the pretrial systems that states, counties, and localities are striving to achieve without money bail.

 

Bail Reform on America’s Justice System

NBC News – 8/22/17
America’s justice system runs on the exchange of money for freedom. Some say that’s unfair. But can data fix it? … Created by data scientists and criminal-justice researchers, the algorithm — one of dozens of “risk assessment tools” being used around the country — promises to use data to scrub the system of bias by keeping only the most dangerous defendants behind bars, regardless of their socioeconomic status. “You also have to realize that individuals are presumed innocent. Sometimes we forget that.” Read more.

Selling Off Our Freedom

Selling Off Our Freedom: How Insurance Corporations Have Taken Over Our Bail System is a joint report by Color of Change and the American Civil Liberties Union’s Campaign for Smart Justice that documents how the for-profit bail industry fuels mass incarceration and perpetuates racial inequalities.

Americans Favor ‘Rehabilitation’ Over Jail Time, Survey Finds

A significant majority of Americans believe putting people behind bars for non-violent offenses is a wrong—and almost three-quarters favor  “rehabilitation” over jail when such offenses are committed by those who suffer from mental illness, according to a Zogby Analytics/RTI International. Read More.

New Jersey passes new bail reform law, changing lives of poor defendants

New Jersey’s Bail Reform and Speed Trial Act, in effect as of Monday, will largely eliminate bail for minor crimes and is expected to significantly reduce the state’s jail population. Under the new law, courts will use a risk assessment tool to decide whether or not a defendant should be released pre-trial, rather than simply assigning that person cash bail.

The risk assessment tool, which was created through the Laura and John Arnold Foundation, “evaluates a defendant’s risk of failing to appear, committing another offense, and committing a violent offense,” according to the Philadelphia Inquirer.

Read the full article in the New Jersey press.

Campaign cash from bail industry surged in Maryland

The bail bond industry poured $87,000 into the campaign coffers of Maryland politicians in 2016, according to a report released Wednesday by Common Cause Maryland. The influx of donations came as the General Assembly prepared to consider whether to alter or eliminate cash bail for most poor defendants.

The largest portion of the 2016 contributions, $21,000, went to Sen. Robert Zirkin (D-Baltimore County), chairman of the Senate Judicial Proceedings Committee. That panel will play a key role in deciding the fate of the state’s money-based bail system.

Read the full article in the Washington Post. And see the actual contributions uncovered by the Common Cause “Pay-to-Play” research.

Attorney General Frosh releases his Bail System Reform FAQ

1. Why do we need to reform Maryland’s bail system?
2. Should Maryland release a defendant if a judge determines the defendant is a flight risk and/or a risk to public safety?
3. Why is Maryland releasing defendants charged with violent crimes?
4. Why would Maryland ever release people charged with a crime instead of jailing them until trial?
5. Is there a financial burden to the state in detaining low risk people?
6. Have other states and localities eliminated or reduced their use of money bail?

Read the answers here.

Pretrial Justice: How Much Does It Cost?

Alan earns the median annual income in Baltimore: $26,164. He is arrested and assessed
as “medium risk” for having failed to appear in court on previous charges. This means that, statistically, Alan has an 87% likelihood of coming back to court and staying arrest-free before trial… Read the full report from the Pretrial Justice Institute.

She spent five days in jail because she couldn’t come up with $1,000.

Shannan Wise, who was working two temp jobs and attending school for medical billing, remembers the countless calls she made from Central Booking in Baltimore, praying that her friends and family would come up with the $1,000 she needed to get out of jail. Read the full story in the Washington Post.

MAJR circulates a petition on Bail Reform

Maryland’s Attorney General questions the constitutionality of keeping citizens in jail just because they are poor. However, Maryland judges continue to set high money bail bonds that low-income individuals can’t pay. If defendants do post bond, the amount due to bail bondsmen can consume months of wages. They can’t get this money back, even when they appear for their trial dates or charges are dropped.

It doesn’t have to be this way. Sign our petition to reform Maryland’s Bail system: https://www.ma4jr.org/petition/

MAJR Testifies on Bail Reform

11/16/2016

MAJR joins Attorney General Frosh and the Rules Subcommittee in strong support for the proposed changes that would create Maryland Rule 4-216.1 and revise related provisions to safeguard equal protection for low income Marylanders from inconsistencies and disparate impact of Maryland’s current pretrial / money bail practices. Read the full statement here.

The High Cost of Bail

The Maryland Office of the Public Defender (OPD), 11/15/2016

How Maryland’s Reliance on Money Bail Jails the Poor and Costs the Community Millions – A report by the Office of the Public Defender is the product of a collaboration among Arpit Gupta, Douglas Swanson, and Ethan Frenchman. Read the full report.

Reform Maryland’s cash-bail practices

Washington Post 11/4/16

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. Read the complete editorial in the Washington Post.

Maryland is jailing people for poverty

Washington Post, 10/28/16

Maryland’s system of cash bail for criminal defendants is unjust and in serious need of change. That’s the judgment of two state commissions that have studied the matter, as well as outside experts in criminal justice. But efforts to reform a system tilted in favor of those with the money to buy their freedom have failed because of opposition from lawmakers under the sway of the bail bond industry. A recent opinion by Maryland’s attorney general challenging the constitutionality of the system should lead, finally, to the change.  Read the complete editorial in the Washington Post

Pretrial Justice – Problems and Solutions

The Pretrial Justice Institute has updated their two page brief on the fundamental problems with current pretrial practice and the commonsense solutions. This valuable resource is a great way to introduce pretrial justice reform to colleagues and others.

Primary Resources on Pretrial Detention:

“You can’t imprison someone for poverty”, Frosh

In a Baltimore Sun article Brian Frosh, Maryland’s Attorney General questioned the legality of bail which defendants can’t afford. Maryland’s top legal officer has concluded that the state’s system of holding defendants in jail because they can’t afford to pay cash bail likely would be found unconstitutional.

In a letter sent Tuesday to five House of Delegates members who sought his opinion, Attorney General Brian E. Frosh told them that judges and court commissioners must take into account the accused’s ability to pay before setting bail. He said that if bail is out of reach for a defendant, the courts would find that unlawful.

Take a look at the legislators’ request of the Attorney General’s office, the response received from his office, and the legislators’ analysis of this response.

Our thanks to Delegate Erek L. Barron, Delegate Kathleen M. Dumais, Delegate Shelly Hettleman, Delegate Marc Korman, and Delegate Brooke Lierman for pursuing this issue.

Frosh opinion on bail could have significant impact on justice system

Jail populations in Maryland could fall. Lawmakers might have to confront an issue they’ve sidestepped. And the future of a powerful industry could be in doubt.

All are possible results of an opinion issued this week by Attorney GeneralBrian E. Frosh, who concluded that keeping people in jail because they can’t afford bail is probably unconstitutional.

Read the full article in the Baltimore Sun.

Money Bond Fails Victims of Domestic Violence

Laura. Yolanda. Tierne. Zeljka. These are the names of four women who paid the ultimate price because of failed money bail systems. And “price” is the right word. Their attackers all had been recently arrested for serious physical abuse against the women, and were in the community after paying money bail for their release. The amount each man paid ranged from $5,000 to $100,000. But no amount would have been enough to protect Laura,Yolanda, Tierne, or Zeljka. Read the full article from PJI here.

Court Costs Entrap Nonwhite, Poor Juvenile Offenders

New York Times, 8/31/2016

“The ways that fines and fees can entrap low-income people in the adult courts has received enormous attention in the past year or two. But the systematic imposition of costs on juvenile offenders, with equally pernicious effects on the poorest of them, is far less known.” Read the full article here.

DOJ: Stop jailing people just because they can’t afford bail

Holding a defendant in jail simply because they can’t afford a fixed bail amount is unconstitutional, the Justice Department said in a brief it filed Thursday in a Georgia lawsuit. “Bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violate the Fourteenth Amendment,” the department said in an amicus brief, referring to the Equal Protection Clause of the Constitution. Read the 8/21/2016 article in the Christian Science Monitor.

Courts use risk algorithms to set bail: A step toward a more just system?

Court systems in more than two dozen US cities and states are using algorithms that assess flight risk without considering race, gender, or socioeconomic status, in an attempt to remove implicit bias from the equation. Now, due to pushback from civil rights advocates and a desire to save government money, an increasing number of courts have begun using computer algorithms to assess risk. Such tools, proponents say, remove any implicit bias from the equation, producing a more objective assessment.  Read the 8/03/2016 article in the Christian Science Monitor.

Maryland’s Public Defenders Overworked!

Across Maryland, especially in suburban and rural areas, public defenders are asked to represent hundreds more clients than legal experts say they can juggle and still provide effective legal representation. Read the 8/20/2016 Baltimore Sun article.

Pretrial Criminal Justice Research

Laura and John Arnold Foundation, Nov 2013

This research demonstrates how critical it is to focus on the pretrial phase of the criminal justice system. Pretrial decisions made by judges, police, and prosecutors determine, as Caleb Foote stated in 1956, “mostly everything.” These studies demonstrate that pretrial decisions may impact whether or not a defendant gets sentenced to jail or prison, and for how long; that an increased length of pretrial detention for low and moderate-risk defendants is associated with an increased likelihood that they will reoffend both during the pretrial period and two years after the conclusion of their case; and that supervision may reduce failure to appear rates and, when done for 180 days or more, new criminal activity.

The Fundamentals of Bail

A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform
Timothy R. Schnacke, National Institute of Corrections
August 2014

Pretrial justice in America requires a common understanding and agreement on
all of the component parts of bail. Those parts include the need for pretrial
justice, the history of bail, the fundamental legal principles underlying bail, the
pretrial research, the national standards on pretrial release and detention, and
how we define our basic terms and phrases. See full report.

The Price of Freedom

Baltimore Sun: 8/8/2-16
“…But those who can’t come up with money for a bail bondsman frequently lose jobs, lose apartments and find their families thrown into turmoil as a result of being locked up before trial. That doesn’t keep us safe any more than setting high bail for the Freddie Gray officers did. We can only hope that their example, if not those of thousands of anonymous defendants who cycle through the criminal justice system every year, will finally convince Maryland lawmakers to eliminate cash bail once and for all.” See the full article.

American Bar Association: Reform Pretrial Release

“When jurisdictions use a risk assessment instrument with all judges, and [set] conditions or detention based on an agreed-upon transparent system, not individual judges’ discretion, you can help protect each other.” See the full article.

A Path to an Overdue End of Bail

A Baltimore Sun Editorial by Robert C. Embry Jr.

“Last year in Baltimore there was a repeat of a decades-old outrage that continues to grind on. Over 8,200 largely black and poor citizens — not convicted of any crime, just arrested and presumed innocent — were granted bail, but nevertheless kept in jail because they were too poor to put up the money. Another 7,000-plus were freed on bail but only after collectively paying millions of dollars to bail bondsmen, money they will not get back even if they are ultimately found innocent.” – See more at:
http://digitaledition.baltimoresun.com/tribune/article_popover.aspx?guid=5b91cc2c-fc49-4b17-bf0c-d98a44ab8229

Finishing the Job: Modernizing Maryland’s Bail System

An Abell Foundation Report

What’s wrong with the current system?

  • It results in economic and racial disparities;
  • It allows defendants who pose a risk to community safety but have access to money to buy their way out of jail, and
  • It ignores evidence-based practices that have been effective in other jurisdictions.

Other states, including Colorado and Kentucky, have implemented evidence-based reforms that could provide a model for Maryland.  Indeed, over the past few years, two high-level state commissions have studied Maryland’s bail system and recommended a series of reforms that would result in a major overhaul of that system.

This report offers a path toward implementing the necessary changes and calls on local and state leaders to take action now.

Citation in Lieu of Arrest.

A report by the International Association of Chiefs of Police recommend “Citation in lieu of arrest potentially offers numerous benefits for law enforcement, the criminal justice system, and those cited. Yet the impact of the practice has not been significantly studied. The IACP’s three-pronged assessment of citation in lieu of arrest—has provided a baseline of information and generated numerous questions that provide a path forward for researchers, illuminating the need for more evidence gathering to support effective policies for the criminal justice system, officers, and citizens.”  See the full report here.

How Money Bail Is a Trap for the Poor

Most of the 12 million jail bookings in the United States each year are for low-level, nonviolent charges. Yet far too many of these defendants remain in jail while awaiting their day in court because they cannot afford money bail. More than 60 percent of people locked up in America’s jails have not yet been to trial, and as many as nine in 10 of those people are stuck in jail because they can’t afford to post bond.  Read the full article in The Atlantic.

“Why I refuse to send people to jail for failure to pay fines”

“Many judges continue to jail defendants who don’t have the money. Here are the alternatives.” Read the Washington Post article here.

“Bail in America: The Color of Pretrial Detention”

A new short video about the disproportionate impact of money bail on African American and Latino defendants is now available for viewing on the PJI’s website and YouTube channel. “Bail in America: The Color of Pretrial Detention” explains how the money bail system—which causes low-income, low-risk defendants to be detained even as it lets wealthier, dangerous defendants go free—has an exaggerated, negative impact on minority communities that can contribute to mass incarceration.

Inside America’s For-Profit Bail System

The US is the only first-world country that commercializes bail. The for-profit industry rakes in more than $2 billion annually in revenue. Most criminal defendants can’t pay the full bail amount and must either stay in jail or pay a 10 percent fee to secure a bond, which they won’t recoup even if found not guilty.

In the premiere episode of our series Justice, VICE examines the winners and losers of for-profit criminal justice and explores the emerging alternatives. View the video.

Pretrial Justice Reform Task Force

The pretrial incarceration rate in Maine has increased steadily over the last five years, with some county jails experiencing pretrial populations of over 80% of the total inmate population, according to the state’s Pretrial Justice Reform Task Force. The Task Force’s new report includes 26 recommendations for reform, including statute changes, additional personnel trainings, and changes in policies and procedure.

See the full report here.

Pre-Trial Project: 3-Days Count

Our justice system currently operates like a complex maze, with too many entry points and too few exits. As a result, many people enter jail—and stay in pretrial detention—unnecessarily, which increases their chances of getting stuck in the maze. In fact, each year nearly 12 million people are booked into U.S. jails, mostly for nonviolent misdemeanors, and more than 60 percent of jail inmates are unconvicted—largely because they are too poor to post even small money bond amounts.

Even three days in jail can be too much, leaving low-risk defendants less likely to appear in court and more likely to commit new crimes—because of the stress incarceration places on fundamentals like jobs, housing and family connections.

Meanwhile, half of the highest-risk defendants go free by posting cash bail under laws that currently hinder judges’ ability to detain based on risk.

Learn more at: http://projects.pretrial.org/3DaysCount/

Ending the American Money Bail System

Equal Justice Under Law

Every day, there are about 500,000 human beings in American jails solely because they are too poor to make a monetary payment for their release. Across the country, people accused of even minor crimes are kept in a cage prior to their trial — despite our legal system’s guarantee that every person is presumed innocent until proven guilty beyond a reasonable doubt — unless the person can pay an arbitrarily set amount of money to secure her or his release. The result is pretrial detention based on wealth-status, not any meaningful assessment of flight risk or danger to the community.

Read about the Equal Justice Under Law organization’s work.

Bail in America: Unsafe, Unfair, Ineffective

The American system of bail is fundamentally incapable of doing the job we expect from it. Those with money—regardless of where they got the money or their danger to the community or victims—can purchase their freedom while poor defendants remain in jail pending trial, which can sometimes last years.

See the information sheet on Bail in America

Race & Bail in America

At every stage in the criminal justice system people of color fare worse than their White counterparts—the pretrial stage is no exception.
Money bail is especially unfair to people of color, not to mention
defendants, victims,and the general public.

See the information sheet on Race & Bail in America

Commission to Reform Maryland’s Pretrial System – Final Report – 2014

Senator Chris Shank joins Scott Shellenberger in favor of cash bail bonds.

“The use of secured financial bond whether in the form of cash, property or surety bond serves an important function in Maryland’s Criminal Justice System. When family members, loved ones or friends have put financial resources toward effecting a defendant’s release pretrial, it is an incentive for the defendant to appear in court. With financial resources on the line many defendants will not fail to appear for fear of a financial loss. The defendant’s personal investment in the current system of pretrial release has a useful place within the pretrial system.”

Money Bail in Maryland

Money bail is the civil rights issue of the 21st Century. Bail affects minorities in a disparate fashion. Study after study has shown that individuals who are similarly situated will receive differing bail amounts based upon their racial identity. You don’t need to be a scholar to see this play out in the courtrooms of Baltimore. Our non-minority clients have a clear advantage in bail determinations. It is just yet another reason to eliminate the use of money bail. We cannot escape the subtleties of unconscious racial bias caused by leaving too much discretion in the hands of bail officials who have the power to set bail amounts based upon race. Money bail doesn’t support stability and safety in the criminal justice system; it tears away at the foundation of stable and healthy communities.

In Baltimore City we face the highest bail amounts on average in Maryland, yet our clients are frequently the poorest of the poor. Pretrial detention is every bit a punishment as is a sentence imposed after a conviction. My clients are locked up from 30 days to upwards of a year waiting for trial. They lose their homes, jobs, children, enrollment in education. All of the stabilizing factors that could and should be considered in determining whether they are a flight risk or a danger to society are stripped away simply because they cannot pay a bail which is sometimes as little as $100. Often we have clients who sit in jail on low level misdemeanor charges “serving” a 30-day pretrial detention sentence only to have the case dismissed on the trial date. In other cases my clients in pretrial detention will plead guilty, be sentenced to time served and then released. If the government does not believe my client should receive a sentence of incarceration upon conviction why is it appropriate to jail them beforehand? How can it ever be appropriate to jail them while they presumed innocent?

NatalieFinegarNatalie Finegar
Deputy Public Defender
Baltimore, Maryland Office of the Public Defender