This should be shocking, but it’s not. Lawyers don’t like to talk about it, because they don’t want to be marked as troublemakers, but it’s all true. This is long, and there’s going to be a part 2 on sentencing. Today we’re talking bail.
The Pew data, from fiscal 2014, show that white offenders served an average of 41.5 months, while black offenders, served an average of 54.5 months — a disparity of more than a year. For drug crimes, white offenders served an average of 23.4 months, while black offenders served an average of 35.5 months. Possession of drugs with the intent to distribute is the No. 1 reason people in Maryland are sentenced to state prison, according to Pew’s analysis.
This data is out there as part of the Justice Reinvestment Coordinating Council, a legislatively created body overseen by the Governor’s office.
The problems aren’t related solely to sentencing, but extend to issues of pretrial incarceration and money bail, the latter of which had been a political hand grenade since the Court of Appeals held several years ago that defendants were entitled to representation before District Court commissioners who set bail and other conditions of pretrial release in the first instance.
According to the Pretrial Justice Institute, defendants of color are given higher bail amounts and are detained more often than white defendants. The institute says that more than 60 percent of the people in jails across the country have not been convicted but are awaiting trial in jail because they can’t afford the cash bail.
The General Assembly has been debating issues of bail for several years now. No comprehensive overhaul of the system has managed to pass, initially because of personal and institutional conflicts between certain members of the House and Senate, and also because the only real solution is doing away with money bail.
DC did it over 20 years ago - 80% of defendants are now supervised by the Pretrial Services Agency, 15 percent are charged with serious enough offenses so that no bail is allowed. The remaining 5% are on non-surety bonds - the commercial for profit bail bond industry is dead in DC. That’s one reason why no new bail laws have happened in Maryland - the bail bond lobby is hella strong., and they back it up with the coin of the realm: campaign contributions.
But bail bondsmen are hardly the only bad part of the system. The first person a defendant sees after being arrested who’s not a cop is a District Court commissioner, whose job is to set bail. That sounds very important - and it is - but here’s a dirty little secret: Maryland commissioners are not required to be lawyers or to have any legal training at all. Despite this, they are expected to apply They work long hours (commissioners’ offices in the vast majority of Maryland counties are required either to be open or on call 24 hours a day). They are paid relatively low salaries - between $44,000 and $65,000 - that are at odds with the important job they do. They work eight hour shifts with no break (not even for lunch or dinner), often in an office at a jail that is little more than a cell with a door, and make no overtime pay even when they are required to work more than eight hours. In a typical day, a commissioner may see over 100 recently arrested individuals. In FY 2011, the latest year for which I could find data, 279 commissioners made 176,523 initial release determinations, of which approximately 44% resulted in release on personal recognizance. Remember, pretrial release determinations are ultimately only supposed to be about two things: will the defendant show up for court, and the safety of the victim. That’s it. But it doesn’t work that way in practice.
What are the factors that commissioners are required to consider?
In determining whether a defendant should be released and the conditions of pretrial release, the judicial officer is required to take into account the following information, if available: (1) the nature and circumstances of the offense; (2) the nature of the evidence against the defendant and the potential sentence upon conviction; (3) the defendant’s prior record and history with regard to appearing in court as required; (4) the defendant’s employment status and history, family ties, financial resources, reputation, character and mental condition, and length of residence in the community and the State; (5) the potential danger of the defendant to himself or herself, the victim, or others; (6) recommendations of the State’s Attorney and any agency that conducts a pretrial release investigation; (7) information provided by the defendant or the defendant’s counsel; and (8) any other factor bearing on the risk of a willful failure to appear and the safety of the alleged victim, another person, or the community, including all prior convictions and any prior adjudications of delinquency that occurred within three years of the date the defendant is charged as an adult.
That’s a very complex set of factors to consider - they should be simpler. And please note that these factors aren’t in any law, they’re in Rule 4-216(e) adopted by the Court of Appeals. The relevant actual laws are sections 5-101 and 201 of the Criminal Procedure article.
5-101:
This section shall be liberally construed to carry out the purpose of relying on criminal sanctions instead of financial loss to ensure the appearance of a defendant in a criminal case before verdict or pending a new trial.
5-201:
(a) (1) The court or a District Court commissioner shall consider including, as a condition of pretrial release for a defendant, reasonable protections for the safety of the alleged victim.
Look back again at the eight factors in the rule. Residence, employment, family, reputation. All things that certain segments of the population have in abundance while others - the homeless, the jobless, the immigrant, the resident who moved far from his or her home, the person who rents a room in a house but has no written proof. What do these folks also have in common? They’re the ones who can least afford to pay for a bail bond.
I can tell you from experience at bond review hearings that if the defendant can’t verify an address (or get someone to show up who can) to the satisfaction of pretrial services, no personal recognizance. If there’s a prior criminal history, no PR, regardless of the FTA (failure to appear) history. If the defendant doesn’t have a job, no PR. If the defendant doesn’t have ID, no PR. These aren’t blanket rules, but I have seen each of these and other extra-legal factors be used against either clients or other defendants when I’ve been in the courtroom.
And another factor exacerbates all this: if the defendant or family member or even just a friend owns a home, a property bond is available in lieu of a bail bond.
If you can’t see the enormous racial and socioeconomic issues that just jump off the page here, I think you’re reading the wrong blog.
I’d love to know the demographic breakdown of who gets locked up pending trial because they can’t make bail. My experience (by no means dispositive, but not minimal either) is that black and Hispanic defendants are vastly more likely to remain incarcerated pending trial than white defendants.
Bottom line is that the court rules, however well-intentioned, are in practice violating the principle that pretrial release determinations should be based on ensuring the defendant’s appearance at trial and providing for the safety of the victim. As a result, the system racially and economically discriminates from the moment of the defendant’s first non-police encounter with the judicial system. The system is rotten in its DNA.
OK, wow, that’s long. But necessary. The next step is to see just how much that initial release determination affects the remainder of the case, including sentencing outcomes. SPOILER: The answer is “a lot.” But we’ll deal with that tomorrow.