Contrary to what advocates say, the Court of Appeals of Maryland — precipitated by Attorney General Brian Frosh‘s October 2016 letter stating that the state’s bail policy violates the constitutional bar on “excessive bail” — did not alter, change or “reform” bail practice. The court abolished it by fiat.
Now that the Maryland Legislative Black Caucus has endorsed inaction as its preferred course, allowing the abolition of bail in the state to go forward, it is clear that eliminating bail altogether (and by any means necessary) was always the end sought by bail critics. They never wanted to repair a dysfunctional system — they wanted it gone.
Now, under the new rules set to take effect July 1, bail must be set according to the defendant’s ability to pay or “afford” bail — a standard so low that all but a tiny fraction of the accused will be ineligible to post bond.
Instead, those awaiting trial will either be detained or released without a surety (or financial deposit commensurate with their risk to the community and likelihood of appearing at trial). Proponents of this new system call it “reform” and intend to address the inequities in current bail hearing outcomes that disproportionately impact communities of color and the poor in Maryland.
Release will still have conditions under a pretrial supervision regime that will operate like parole or probation for those that judicial officers deem appropriate. The problem is, pretrial conditions do not effectively ensure trial appearance.
As economists Eric Helland and Alexander Tabarrok found in 2004, in the most exhaustive peer-reviewed study of failure-to-appear (FTA) outcomes on bail, commercial bail is highly effective in reducing FTAs. Furthermore, bail bondsmen quickly and efficiently return fugitives to the authorities.
The reason is simple: Bail incentivizes trial appearance because those who post bail (the defendants or their loved ones) do not want to forfeit their funds or property if the defendant flees. Moreover, if the accused does become a fugitive, the bail bondsman has the right and a compelling interest to recover his investment by returning the defendant to justice.
Critics also charge bail is unfair and unconstitutional, but the facts belie this claim. In terms of fairness, the evidence is scant of any institutional bias against the poor built into the system — beyond anecdote and inference. In fact, state court rules prior to the Court of Appeals’ rules change specifically instruct court commissioners (who initially set bail) to consider the accused’s “family ties, employment status and history, [and] financial resources” in setting bond amounts.
Any bias is not in the code but in the application by human beings and jurisdictional disparities in bail setting, which is borne out by wide variations in bail outcomes across the state. Most, if not all, of bail’s impact on communities of color and the poor can be attributed to these differences. In other words, human bias, rather than policy, needs to be checked back.
On constitutionality, critics of bail charge the system has violated due process and the constitutional bar on excessive bail, but the grounding for this claim is specious at best. In the attorney general letter that set off the Court of Appeals ruling, the author cites the 1951 Stack v. Boyle U.S. Supreme Court case that examined the constitutionality of money bail.
The majority actually held that bail should not be set higher than “reasonably calculated” to assure the defendant’s appearance. The Frosh letter cites a concurring opinion, not the majority, in arguing for an affordability standard for bail, which does not have the weight of precedent.
Furthermore, a subsequent majority decision by the Supreme Court in Salerno v. United States in 1987 rejected challenges to detaining defendants before trial if public safety is threatened.
Together, Stack and Salerno affirm money bail’s legality and legitimacy if necessary to protect the public and ensure the accused’s appearance at trial. The Frosh letter even concedes this fact, writing: “no court has explicitly stated that there is a constitutional right to affordable bail.”
Bail, then, is constitutional, and the statute already allows for the “individualized assessment” that critics demand be conducted.
But the disparities and potential ineffectiveness of Maryland’s bail outcomes should not be ignored. Instead, real reform requires more data and accountability, including a deeper analysis of its effectiveness and efficiency as compared to alternatives like the algorithm-based risk assessment tool and pretrial supervision regimes (which both raise constitutional and bias issues of their own).
Under current law, court commissioners are neither expert nor accountable for their decisions, which contributes to biased and potentially unfair bail outcomes. A system that professionalizes and better holds these officials to account would be a major improvement over the status quo.
Since good public policy takes careful consideration, haste will not improve public safety, nor bring about a more efficient, effective, and, yes, fair criminal justice system.
Governor Larry Hogan and the state legislature should preempt the court’s pending rules change, reinstate bail as a real option for the accused of Maryland and call for more data and accountability in the criminal justice system.
Sean Kennedy (firstname.lastname@example.org) is a visiting fellow at the Maryland Public Policy Institute, a think tank based in Rockville, Md. He is the author of the recent study, “Bent, not Broken: Assessing Maryland’s Bail System and Reforms in Context.”