One of the most contested issues of the Maryland General Assembly’s 2017 legislative session was bail reform. Simply put, “bail” refers to an amount of money paid to a court that the court deems sufficient to ensure that a defendant will return to court if released from jail while awaiting further action on a case. Most defendants buy a bail bond, where a third party (the bail bondsman) pays the full bail amount to the court in exchange for a right to recover that amount from the defendant should the defendant fail to appear.
Over the years, the chorus of voices calling for bail reform has grown in Maryland and beyond. Advocates have argued that bail exacerbates racial and economic disparities in the criminal justice system, and that it’s not really an effective means of ensuring the appearance of defendants in court. Some jurisdictions—including Washington, D.C.—have already eliminated cash bail entirely.
This past October, in response to a letter from members of the General Assembly, Attorney General Brian Frosh advised that Maryland’s current cash bail practices, where defendants were routinely being held in jail without any justification other than they could not afford bail, might violate the U.S. Constitution.
Then in February of 2017 the rules committee of Maryland’s highest Court adopted new Maryland Rule 4-216.1 which clarified that a judicial officer may not impose a financial condition on a defendant’s release that will result in that defendant’s incarceration for the sole reason of not being able to afford bail, and further instructed judicial officers to give preference to nonfinancial conditions of release. This set up a legislative fight between the bail bonds industry and advocates, with the ultimate outcome being that no bill passed this session, allowing the Court’s rule to go into effect in July of this year.
It’s clear from the experiences of community members and the scholarly evidence that use of cash bail has not correlated to good public safety outcomes. Courts detain defendants prior to trial who are a flight risk or a threat to individuals or communities. Bail has not been shown to be more effective than other methods of ensuring defendants return to court, and it certainly doesn’t protect victims or communities from harm.
Instead, evidence-based assessment and community supervision have been shown to work far better at achieving these goals, and they do not carry the same risk of racial and economic disparities. Given the toxic effect of mass incarceration on Maryland communities, we need criminal justice approaches that protect the necessary policy interests of the state while eliminating or reducing harm to individuals, families, and communities. Though a weaker form of cash bail has survived for the time being, advocates have expressed their intention to continue to work on to enhance nonfinancial alternatives and to ultimately eliminate cash bail entirely.
Bail is like many other criminal justice issues in that the experiences of those affected by the status quo as well as growing bodies of scholarly research are often at odds with what legislators and policymakers are willing to advance. That’s why we need representatives who are prepared and willing to bring a different perspective and take different approaches to solving longstanding issues that have consistently evaded resolution. We owe no loyalty to any practice on the basis of familiarity alone. To ensure that our communities are safe, we must listen to the perspectives of those who have been affected by our criminal justice system as well as scholars and advocates who have dedicated their efforts to its improvement. On the issue of bail, that means phasing out cash bail entirely and reforming our pretrial release system to put the health and well-being of individuals, families, and communities first.