I wrote about the problems with Maryland’s bail system in criminal cases back in September. Summary: our system sucks. One thing I didn’t write about back then was the current legislative stalemate over how to fix the system following a court ruling. A quick history primer:
Back in 2012, the Court of Appeals held that, contrary to what was actually happening, defendants had a right to counsel at bail hearings, including the initial determination by a commissioner. This was a bombshell ruling - in FY 2011, District Court commissioners conducted 176,523 initial appearance hearings, 30% of them in Baltimore City alone. The costs do providing counsel for all those hearings was and remains staggering.
In response to that ruling, the General Assembly in 2013 set out to restructure the bail system in Maryland. Three legislative sessions later, no resolution has been reached. Why not? On the surface, it’s a dispute between the House of Delegates and the State Senate. The Senate had been in favor of more comprehensive reform, while the House supports more limited reform and at least some resistance to the court ruling. Now the issue appears largely dead.
But on a more basic level, change has been slow to come because of the influence of the bail bond lobby. Being a bail bondsman is a lucrative business, and its best source of profits is poor families desperate to get their loved ones out of jail. As my last story pointed out, “defendants of color are given higher bail amounts and are detained more often than white defendants.”
The Washington Post editorialized in 2013:
The bail bond industry has powerful allies in Annapolis, where many lawmakers are trial lawyers. Eliminating the system wholesale may not be politically possible, at least for now. But the idea should get fair consideration. Even if the state is compelled to hire scores of public defenders to ensure defendants’ constitutional rights, it can also make the system fairer and more sensible by providing non-monetary means of encouraging defendants to appear in court.
As is so often the case, the Post overshot the mark by smearing every “trial lawyer” in the legislature, and there aren’t “many” such lawyers any longer, as the number comes down every election. But the Post isn’t wrong. There are impediments to real reform. Hint: one of the principal opponents of real bail reform in the legislature is no longer there, while a current legislator is now in a stronger position to advocate the industry’s interests than was the case when the editorial was published. Moving on . . .
OK, that was a super long intro, but here’s the point. Nothing is moving in the legislature any time soon. Tens of millions of dollars are being spent on ad hoc efforts to get lawyers to cover initial bail hearings. Racial and socioeconomic effects persist. Time for a new strategy. The rallying cry of the “trial lawyers”: to the courthouse!
The lawsuit filed by the Equal Justice Under Law in San Francisco federal court in October seeks to abolish the cash bail system in the city, state — and the country. It’s the ninth lawsuit the center has filed in seven states.
“The bail system in most states is a two-tiered system,” said center founder Phil Telfeyan. “One for the wealthy and one for everyone else.”
The center has settled four lawsuits, convincing smaller jails in states in the South to do away with cash bail requirements for most charges.
Telfeyan said a win in California could add momentum to the center’s goal to rid the country of the cash bail system, which the lawyers say is used by most county jails in all 50 states. The federal system usually allows non-violent suspects free without bail pending trial and denies bail to serious and violent suspects.
The bail bond industry ignored the suit originally, but has now jumped in after government lawyers in San Francisco responded with insufficient vigor to defend the bail bond industry’s profits. Sound familiar?
But on Monday, lawyers for the California Bail Agents Association filed court papers seeking to formally oppose the San Francisco lawsuit. The association argues that government lawyers for San Francisco and the state are offering only “tepid” opposition to the California lawsuit.
San Francisco Sheriff Ross Mirkarimi argues that most jail inmates are awaiting resolution of minor, non-violent crimes and that letting them free while awaiting court hearings will save the city millions of dollars. Mirkarimi said non-violent suspects can be monitored electronically and with frequent visits from law enforcement officials to ensure they don’t flee the area and attend all their court hearings.
The for profit bail bond industry has outlived its usefulness, if it ever had any. It’s rife with corruption, it’s insufficiently regulated, and it perpetuates existing de facto discrimination in the court system. It’s time for it to go, and there are alternatives.
A lawsuit in Maryland like the one in San Francisco would help to bring about real and necessary change. The only change that’s happened yet was started by such a lawsuit. Now it’s time to go for the home run ball. Who’s up for this?
Memo to Fred Hiatt: Your increasing neocon sensibilities are affecting your reasoning processes (shockingly, the Justice Policy Institute analysis linked above notes the connection between the bail bond industry and ALEC, the right wing state legislative arm, creating alarming levels of cognitive dissonance for the Post, I’m sure). Dude, sometimes it’s those nasty “trial lawyers” that bring about the changes for good in this country, and I mean, y’know, Brown v. Board of Education and all that? Put the blame where it belongs: the bail bond industry.
