Most of the 12 million jail bookings in the United States each year are for low-level, nonviolent charges. More than 60 percent of people in jail have not yet been to trial, and as many as nine in 10 of those people are in jail because they cannot afford to post bond. The consequences can be devastating to the incarcerated individual, including losing a job and housing and having children taken away. A 2016 study in Philadelphia also found that the assessment of money bail for those who cannot make bail is a significant, independent cause of convictions and recidivism. Too often those who are innocent and cannot make bail plead guilty to get out of jail, which creates the additional burden of a criminal record.
In a report released in 2016, the Maryland Office of the Public Defender (OPD) found that in the 18 jurisdictions it surveyed between 2011 and 2015, more than 46,000 presumptively innocent individuals were detained on bail for the first five days of their criminal case—more than double the number of defendants held without bail due to dangerousness or risk of flight. The OPD also found that defendants who posted a corporate bond through a bail bondsman paid a total of $256 million in nonrefundable corporate bail bond premiums during the same time period. In addition, the neighborhoods with the highest corporate bond costs are also two of Maryland’s poorest neighborhoods (Park Heights and Sandtown-Winchester).
Efforts to end the use of money bail in Baltimore City (and all of Maryland) made tremendous strides in 2017 spurred on in part by the June 2016 Abell Report, “Finishing the Job: Modernizing Maryland’s Bail System.” Most notably, the Maryland Court of Appeals passed a revision to its pretrial rules that discourages financial conditions and prohibits pretrial detention based on the inability to pay. As a result, judges have begun to change their bail practices and some defendants who likely would have previously been held on a money bail have been released.
OPD Text Alert Program
The Abell Foundation provided a grant of $30,000 to the Maryland Office of the Public Defender (OPD) to start a text alert program in Baltimore as a complement to existing pre-trial reform efforts. The text alert program provides a tool that encourages release without money bail for defendants who are considered a failure to appear (FTA) risk. Currently, the reminders are received only by OPD clients, but it provides a model that the court system could adopt statewide to provide reminders to all defendants.
This pilot is in response to concerns expressed by judges over the lack of resources available to ensure released defendants will make their scheduled court dates. Automated reminder systems, which provide defendants with a reminder message the day before their court date, are a proven best practice in reducing FTA rates in jurisdictions that have utilized them. In Los Angeles, for example, automated call reminders for traffic citations in collections have resulted in a 22 percent decrease in the FTA rate for these cases. In Multnomah County, Washington, the Court Appearance Notification System reduced the FTA rate in its criminal cases by 45 percent and saved $1.6 million in a single year.
OPD decided to start its pilot focusing on traffic charges because the program was new, and it anticipated implementation challenges. Clients with traffic charges are more likely to be out of jail pending trial than people facing criminal cases, and if there are problems with the text alert system, the consequences in a traffic case would be less severe. OPD has had 36 clients sign up for text alerts in Baltimore City, and these clients have received reminders about 39 court dates. For the court dates in which reminders were sent, the appearance rate has been 96 percent. The most recent available data from the court showed an overall FTA rate in Baltimore City since the court rule change of 8 percent, double what the pilot has shown to date. OPD is in the process of planning an expansion of its text notification system to criminal cases.
University of Baltimore’s Pretrial Justice Clinic
In further support of pretrial reform efforts, the Abell Foundation provided $73,100 to establish the Pretrial Justice Clinic (PTJC) at the University of Baltimore. The PTJC builds on the novel litigation model pioneered at the Office of the Public Defender (OPD) to use habeas corpus petitions to challenge improper bail determinations. This approach was successful in securing the release of 101 citizens wrongfully imprisoned during the aftermath of the death of Freddie Gray.
Ten law students over the course of two semesters have the opportunity to represent clients in bail review hearings, to file habeas corpus petitions challenging unlawful and unjust bail determinations, and engage in appellate litigation to press for fairer standards in the bail system. Additionally, students are educated about the legal and social consequences of the current bail system and other approaches to bail so they, in turn, can educate others. In the past year, PTJC students filed 36 habeas appeals and secured release for 15 individuals.
PTJC co-directors, Zina Makar and Colin Starger, have also worked in coordination with institutional stakeholders to help secure the procedural rule change at the Maryland Court of Appeals that went into effect July 1, 2017. In addition to its ongoing client representation and education efforts, the PTJC is researching potential civil litigation to advance the cause of pretrial justice. This includes potential restitution efforts on behalf of clients who sit for weeks and months in jail pretrial only to have their charges dropped. Litigation against the bail bond industry is also under consideration.
Information published in July 2018.