Heads up, Illinois: Maryland lawmakers find reforming bail no easy task

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ANNAPOLIS, Maryland – Days after Maryland’s judiciary rewrote court rules to minimize the use of cash bail and years after two blue-ribbon panels recommended killing money bail because of its warping effect on poor defendants, bail bondsmen and reform advocates met here last week to squabble over plans by the legislature to jump into the issue.

On one side were supporters of the bail industry, which largely influenced the creation of a bill that critics say undermines the judiciary’s new rules. On the other were reformers who wanted to mirror the court’s changes by making them law.

Yet testimony about the proposed legislation revealed just how hard it is to move the nation away from a bail system that jails poor people before adjudication simply because they can’t afford to pay their bond.

In state after state and year after year, the bail industry flexes its political muscle. Their advocates loudly endorse them. Reform advocates plead for change. And legislators are seemingly awash is imprecise data, faulty assumptions and outright misleading facts, all of which were on display in Maryland’s capital last week.

At issue is reform of a system that historically has required arrestees to either put up money or wait in jail for their trials. Jail overcrowding and the costs of keeping people in custody who have not been convicted have driven many public officials to call for reforming the system.  In recent months, lawsuits have been filed in several large metropolitan counties, including Cook County, contending that holding people before their trials in custody only because they are too impoverished to pay bail violates their constitutional rights.

Critics of the current system note that not only are thousands of people across the country who are accused of nonviolent crimes left to wait in prison because they are poor; but other suspects accused of violent crimes end up walking the streets because they have ready supplies of cash.

The reform model has worked for 45 years in Washington D.C., where people judged to be dangerous or likely to flee are held in custody, and the rest of those arrested are freed, often with conditions designed to ensure they will appear in court.

But the sweeping reform is opposed both by the bail bond industry as well as by opponents who fear that people will not show up in court or will commit crimes if not held in custody pretrial. In addition, many judges are reluctant to release suspects, fearing political backlash if those released commit violent crimes.

Wednesday began with a press conference by the Coalition for a Safe and Just Maryland, a freshly created group composed of legal activists, bail reformers and grassroots organizers.

The coalition’s message: support adoption of the reformist legislation to make the criminal justice system “free of racial bias” while ending a system that “tramples on the presumption of innocence.”

Calling 2017 the “year for pretrial reform,” Paul DeWolfe, the Maryland Public Defender, urged the legislature to replace the “wealth-based system” of bail with an “evidence based system” that adopts robust pretrial assessments of the accused.

The reformers also pointed their fingers at the bail industry, contending it is the villain in the process.

Dayvon Love, the director of public policy at a Baltimore group called Leaders of a Beautiful Struggle, bluntly described the bail industry as “profiteering off of the ravages of mass incarceration.” And, he noted: “If pretrial reform went through, there are folks who would quite simply make less money.”

Later, as the advocates entered a packed state senate hearing room, it was plain that supporters of the pro-bail legislation outnumbered them.

Lawyers, a prosecutor, a judge, elected officials, bondsmen, a crime victim and a representative of the Maryland NAACP all praised the pro-bail bill, largely for taking a middle ground between maintaining the status quo, ending bail altogether and protecting the public.

The proponents of the pro-bail bill spent nearly two hours discussing its benefits. Legislators conducting the hearing then moved to other bills, only to return to the reformist bail measure late in the evening, nearly five hours after the hearing began. By then, most people had left the room, including representatives of the bail industry. During the wait, one bail lobbyist had called the reform bill “a bad bill.”

One reformer, University of Maryland law school professor Douglas Colbert, told the senators such an imbalanced hearing was “unfair.”

Legislators appeared to struggle to grasp how a system other than cash bail could succeed. Their questions were not focused on what percentage of those released in reform states return to court as scheduled and do not commit new crimes —   two basic measures of the success of non-bail systems. Nor did they discuss the succewss of the Washington program.

Sen. Wayne Norman raised questions about the cost of building a pretrial services department to help serve detainees and ensure they appear as required in court.  “It’s a huge bill,” he said.

Not mentioned by Norman or by others were the savings on jail costs when fewer accused are incarcerated awaiting trial. Injustice Watch reported such savings are substantial, and pay for the costs of expanded pretrial services.

Some senators also seemed unclear about monitoring tools used to assess the threat that detainees pose if they are released pretrial, despite years of study and implementation around the country.

Sheriff George Hardinger, warden of the Carroll County, Maryland, detention center, volunteered to be part of a pilot assessment that would be set up by a separate reformist bill.

“Individuals held who are no public safety risk (should not be) held only because they cannot make bail. In lieu of that bail, it’s reasonable to put them under pretrial supervision,” he said. If that happened: “We can enhance public safety.”

This week hearings are scheduled on the companion bills for the House of Delegates, after which committee members will vote on recommending the measures to both the House and Senate.

The pro-bail bill is Senate Bill 983. The reformist measure is Senate Bill 880.