MACo and County Wardens: Fixing Bail Without Breaking Jail

MACo has worked closely with the Maryland Correctional Administrators Association (MCAA) to advocate sensitivity to local jail issues as the legislature grapples with bail reform issue, in the wake of the Richmond v DeWolfe decision requiring indigent representation at preliminary bail hearings. Since this issue remains unresolved, we offer below a wrapup on the issue — and how Maryland can “fix bail without breaking jail” this year.

WHAT IS THE WORRY WITH COUNTY JAILS?

Counties operate local jails and correctional centers that house short-term inmates — including those being held pre-trial.  For many years, the state reimbursed many of these “per diem” costs, but recent state budget cuts have left counties fully funding these facilities.

Without a quick determination of whether to release or detain a defendant for trial, county jails will be flooded with short-term detainees. If the result of the Richmond case and the ensuing legislative/judicial reaction fails to recognize the urgency to resolve these decisions on a round-the-clock basis – jails can be overrun with a massive cost, safety, and administrative burden.

Beyond just an increase in space, these changes could cause dramatic and costly operational changes in local jails.  Many jails would be compelled to commingle their short-term pretrial population in with their “general population” for lack of sufficient segregated space. The supervision and management of these newly consolidated facilities could be substantially more costly, as

WHAT COULD BE PASSED THAT WOULD HELP AVOID THIS PROBLEM?

There are two major things that the General Assembly could do that would help avoid this local nightmare:

-if the state adopts a new risk assessment system to replace the preliminary bail hearings, that system must be available on a 24 hour basis (without this, a dramatic increase in overnight or weekend stays will be triggered)

-if the state creates a system of bail hearings by judges, then the District Court must have that process available 7 days a week, to help offset the preliminary determinations currently helping to manage detainee populations

WHAT BILLS ARE IN PLAY?

The Senate Judicial Proceedings Committee appears to be focused on SB 973, a proposal to create a pretrial risk assessment too that would substantially replace the current subjective bail hearing process.

Recent media reports suggest that the House Judiciary Committee, and a working group mostly drawn from that Committee’s membership, are now focusing on HB 1186, which would presumably be amended to incorporate substantial new provisions to address bail issues more broadly.

As of Monday, March 17 – the “crossover” deadline for both chambers  – neither bill has received any formal action, and remain in workgroups.  Further action remains possible, but will face procedural hurdles.

WHAT IF NOTHING PASSES?

The Court of Appeals has stayed enforcement of its ruling to allow action by the General Assembly, but the issue remains unresolved. Without a change in statute at all, the District Courts would presumably continue to hold preliminary bail hearings by District Court Commissioners, but with a vastly expanded and costly new role for public defenders (state funded) and state’s attorneys (county funded). The effect on local jails, in this event, are difficult to assess — but most observers suspect that a more elaborate and confrontational hearings would slow these processes, leaving pressure on local jails, which have been designed to operate under the current system and expectations. This drastic change in how jails will “do business” will cost local governments as jail administrators will undoubtedly require significant increases in personnel needs, inmate medical/housing costs as well as capital infrastructure.

MACo and MCAA urge the General Assembly’s direct attention to the effects on local jails as bail reform issues are considered through the session.

For more information please read MACo’s testimony and MCAA’s testimony on the issue.

Michael Sanderson

Executive Director Maryland Association of Counties
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