New Bail Rules In Effect, Efficacy Questions Linger

On July, 1 changes to the state’s court rules governing the use of bail went into effect. The changes, approved by the Maryland Court of Appeals earlier this year, were made to address concerns that defendants were being held in jail pretrial simply because they cannot afford bail.

A letter of advice issued by the Attorney General last fall stated that the state system could be found to be unconstitutional and in violation of due process. The new rules are intended to mitigate those concerns by providing clearer guidance to a judge or commissioner for taking a defendants financial circumstances into consideration when setting a bond, and directing them to impose the least onerous conditions for release on someone who is not a flight risk or a danger to society.

The Washington Post reports:

The rules change by the state’s highest court put Maryland at the forefront of states trying to reduce jail populations and address racial and economic disparities regarding who is locked up. It requires judges to consider a defendant’s ability to pay when setting bailand has drawn praise from advocates but criticism from bail bondsmen and some tough-on-crime prosecutors and lawmakers.

Although the policy formally took effect this month, it has been unofficially in place since the fall, giving advocates on both sides time to weigh in on whether it is working.

Judges and commissioners have interpreted the change in different ways, according to interviews with advocates, defense attorneys, prosecutors and lawmakers. State data paints a conflicting picture, with some statistics suggesting a jump in people being detained but others showing the jail population declining.

Both supporters and critics say the impact should become clearer over the next year, now that the rules are in effect statewide and defense lawyers can challenge a judge’s decision to issue bail if a defendant can’t afford it. That option wasn’t available before July 1.

One issue related to the rule change that remains in flux is the availability of pretrial services in counties across the state. About half of the counties in Maryland have some form of pretrial program.

But those watching the process also note that the legislature has not acted to set up pretrial services throughout the state, a key component of bail restructuring because it allows judges to assess the risks posed by defendants and offer services including drug treatment, supervision and home detention that are designed to help defendants return to their communities while awaiting trial.

Caryn York, policy director of the Baltimore-based Job Opportunities Task Force, blamed some of the increase in defendants being held without bond on the lack of pretrial release services or courts being unaware of services offered. She said the new policy requires court systems to catalogue services available in various jurisdictions, which should demonstrate where more services are needed and, in some cases, help judges feel comfortable releasing more defendants.

“If judges do not have anywhere to send individuals, they are going to hold them,” she said.

The rule change was not without controversy. As the data on the impacts of the rule change begins to come in, proponents and opponents to the change remain in disagreement to what the data shows or will eventually show. The article highlights key issues such as data regarding individuals released on their own recognizance or held without bond, as well as the failure to appear rate. Data shows the rates for these data points have all gone up in recent months. Court officials believe more time and careful analysis is needed for the data trends to become clear.

“It’s both predicable and appropriate that the numbers would go up,” [Attorney General Brian] Frosh said, referring to more low-income people being released without bond and more defendants deemed dangerous or flight risks being refused bond altogether.

Critics of the rules change, however, said the data proves that the courts acted prematurely and the General Assembly should have approved the pro-bail bill that would have overturned the court rule.

Defendants who don’t post bail “don’t have any incentive to come to court other than it’s their duty to come to court,” said Baltimore County State’s Attorney Scott Shellenberger, a conservative Democrat. “They don’t have skin in the game.”

[Chief Judge John P.] Morrissey said in an email that the data is too broad to show a clear trend. It does not just include people who failed to appear for trial after being released without bond, but also those who were sentenced and failed to appear for a court hearing on a probation violation, or who didn’t show up for a hearing in response to a criminal summons.

For more information:

Jury still out on Maryland’s new bail rules (The Washington Post)

Court of Appeals Unanimously Approves Changes to Bail Rules (Conduit Street)

MACo To Courts: Remember “Big Picture” Amidst Bail Changes (Conduit Street)