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Editorial Advisory Board: A modest bail reform proposal
It is time for the Maryland Judiciary to change the current bail culture and embrace adoption of a modern risk assessment tool to evaluate a defendant’s risk of failing to appear in court or threatening public safety as a path to reducing or eliminating reliance on cash bail or corporate surety bonds for low-risk criminal defendants.
We recognize that bail bonds are necessary for defendants facing serious charges who present a flight risk or threat to the public safety. For low-risk indigent defendants with no personal or family resources, the bail bond requirement is tantamount to excessive bail and creates a drain on public resources.
A pretrial release risk assessment tool provides the bail review court a quantified risk rating based on a criminal defendant’s history of prior criminal arrests and convictions, prior incidents of failure to appear at scheduled court hearings, and other evidence of defendant’s risk of flight or risk of threat to the public safety. The Maryland criminal courts have long relied on the sentencing guidelines worksheet to help guide in sentencing decisions. Adoption of a pretrial release assessment tool is a logical advancement.
In December 2014, the Governor’s Commission to Reform Maryland’s Pretrial Release System reviewed decades of bail data, including a two-week study that found a strong relationship between scored risk levels and overall release rates, but an inverse relationship between bail amounts and risk levels, with low-risk defendants receiving higher bails than high-risk defendants. The study showed that regardless of risk level, two-thirds of detained defendants lacked resources to post bond, including 16 percent in the low-risk category. With a population of 7,000 to 7,500 defendants awaiting trial at any time, the costs of housing low risk indigent defendants add up to an estimated $5 million annually.
Defendants who post real property are most likely to appear in court. None of the other bail options used, cash and non-cash pledges filed with the court or purchase of a personal surety from a bail bondsman, stand out as a singularly superior tool to guarantee court appearances.
The suburban Washington counties of Charles, Montgomery, Prince George’s and St. Mary’s lead the rest of the state in failures to appear. This is an odd trend given that neighboring District of Columbia, which releases 85 percent of defendants with non-financial conditions, reports that 90 percent of those released appear in court and were crime-free during release. Only 1 percent of those released are charged with violent offenses committed while on pretrial release.
The purpose of bail is to ensure appearance in court and protect public safety. Maryland statute presumes the right to bail except in capital cases and evidence of a threat to public safety. The Maryland and federal constitutions embrace a limit on excessive bail; the Founders were profoundly concerned with excessive judicial restrictions on the freedom of the accused. Given success of pretrial release options, this reform is likely to prove at least as successful as the current approach.
Editorial Advisory Board member Gale Rasin did not participate in this opinion.
EDITORIAL ADVISORY BOARD MEMBERS
James B. Astrachan, Chair
Wesley D. Blakeslee
Arthur F. Fergenson
Daniel F. Goldstein
Caroline Griffin
Elizabeth Kameen
Stephen Meehan
C. William Michaels
Gale Rasin
William Reynolds
Norman Smith
H. Mark Stichel
Ferrier R. Stillman
The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the Board attempt to develop consensus on issues of importance to the Bench, Bar and public. When their minds meet, unsigned opinions will result. When they differ, majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.
