Bail reform hasn’t led to fewer held in jail, court records show

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A defendant walks from a Baltimore courthouse to a van that will transport him to a detention facility. Defendants held without bail are far more likely to plead guilty than those released. Capital News Service photo by Alex Mann.

This is the first part of a Capital News Service special project on bail reform and the trial courts. It includes a sidebar at the bottom on a bail review hearing in Baltimore.

By Alicia Cherem and Carly Taylor

Capital News Service

In the cinder-block group cells at the Baltimore Central Booking and Intake Center, you might find a defendant accused of murder sitting beside a man who had one beer too many at an Orioles game. The two concrete benches on opposite sides of these tight quarters offer limited seating. It’s not uncommon to spend a night on the floor.

Joshua Insley, a defense attorney and former public defender, describes a night in jail as “hell on earth.”

But more defendants are being held without bail, according to data from the Maryland Judiciary, because the number of defendants held without bail has increased — despite bail reform that intended to let more people remain free before trial.

In February 2017, Maryland adopted new laws meant to decrease the number of people held with unreasonably high bail.

Bail reform has decreased the number of defendants held because they do not have the money to post the bail set for them, the court data show.  But judges are ordering more people held without the chance to post bail, according to the courts — leaving almost the same number of people sitting in jail.

Reform meant to see more defendants released

According to the judiciary report “Impact of Changes to Pretrial Release Rules,” bail reform was designed to “promote the release of defendants on their own recognizance or, when necessary, unsecured bond.”

The bail reform changes also say that judges can impose additional measures to ensure defendants show up for trial and to protect the community, but the judiciary is encouraged not to impose financial burdens.

At the start of 2018, news articles quoted sources criticizing judges, who were holding more people without bail than they had been before the new rule. Numbers later in the year had not changed much, according to the court system’s data.

Baltimore data show just 2% fewer people were held at their initial appearance in court in July 2018 than were being held in January 2017,  one month before the state adopted reform — from 51.5% at the start of 2017 to 49.5% last July.

Since the start of bail reform, the number of people held with cash bail in Baltimore has dropped from 35.6% to 14.4%, data show. However, the percentage of people held without bail has jumped from 14.8% to 34.2%.

Statewide data shows similar patterns. In Maryland, the number of people held with bail decreased from 29.8%to 18.4%over the past 18 months, while the number of people held without bail has increased from 13.6%to 22.6 percent.

‘Presumptive detention’

Terri Charles, a spokeswoman for the Maryland Judiciary, said that “the courts and public safety [officials] have been working diligently and collaboratively to implement” the reforms in bail and pretrial release.

But some observers, including Joshua Insley, say Baltimore has been unsuccessful in its approach to bail reform because the city went in with a negative mindset.

“These are statewide rules, but for whatever reason, Baltimore City has adopted this philosophy of presumptive detention,” Insley said.

He believes judges are more likely to hold people accused of crime with no bail unless they can be convinced of an adequate reason to release defendants.

William H. “Billy” Murphy Jr., an attorney and former Baltimore judge, said that judges in Baltimore often resort to setting a high bail. He said this has not changed much since the Justice Reinvestment Act of 2016, which aimed to improve public safety, reduce corrections spending and reinvest savings in evidence-based strategies to decrease crime and reduce recidivism, according to the Governor’s Office of Crime Control & Prevention.

“Judges get caught up in the pressure of public opinion,” Murphy said. “They are attacked when someone who is out on bail commits a crime, so they set much higher bails.”

Murphy represented the family of Freddie Gray, who died after being injured in police custody in April 2015. Six Baltimore police officers were charged in Gray’s arrest and death, but all officers were either acquitted or had their cases dropped.

“The bails for those police officers were ridiculously high,” Murphy said. “The officers did not represent a danger to the public and a risk of flight.”

Alternatives to detention

If a defendant is considered a risk, some jurisdictions just opt to hold them without bail, instead of turning to alternatives like pretrial services, said Maryland Attorney General Brian Frosh. If assigned pretrial services, a defendant may get counseling while awaiting trial or receive a text reminding them when and where to attend their trial.

“If someone is a threat or won’t show up to court, they won’t set high bail, they’ll just lock them up,” Frosh said. “Courts will say, ‘You failed to show up three times. We’re not letting you go this time.’ ”

Charles, the Maryland Judiciary spokeswoman, said that judges look to the pretrial release rule, effective July 2017, when deciding bail. The rule was designed to promote the release of defendants on their own recognizance and suggests when additional conditions should be imposed.

While bail reform is working in some aspects, more work needs to be done, said Colin Starger, associate professor of law at the University of Baltimore School of Law  and the co-director of the law school’s Pretrial Justice Clinic. The ultimate goal of bail reform should be having fewer people locked up.

“It’s a hard time figuring out which people are genuine threats and which aren’t,” Starger said.  There’s a better-safe-than-sorry approach being used.”

Capital News Service reporters Shruti Bhatt and Kaleena Dwyer contributed to this article. This story was made possible in part by the generous support of the Park Foundation.

In a Baltimore courtroom, a quick review decides who stays in jail

By Kaitlyn Hopkins and James Crabtree-Hannigan

Capital News Service

On a recent Monday afternoon in Baltimore, Judge Devy Patterson Russell decided the fate — for now, at least — of 12 defendants she could barely even see.

None were in her courtroom on Wabash Avenue, but all were on her docket. They sat in the Baltimore City jail about 6 miles away on Greenmount Avenue and appeared on a video screen mounted high on a wall.

The shackled inmates, all in yellow prison jumpsuits, sat cramped in a small room, behind a pane of glass that made their images even more hazy.

This is bail review in Baltimore, where the judge may spend as little as a minute or two on any of the inmates. She decides which defendants can go home tonight, and which will remain locked up until trial.

By the time they get to bail review, the defendants have almost always spent at least one night in the city jail. Before the hearing began, the defendants were shown a video advising them of their rights.

Their lawyers, most of them public defenders, were sitting in the courtroom, ready to make their cases to the judge.

When a defendant is called, a pretrial officer, who is with the arrestees but off camera, reads off some facts: the defendant’s age, his level of education, how long he’s lived at his address and who lives there with him, his job and whether he’s ever failed to appear for trial.

On this day, the most serious crime among the 12 defendants was second-degree assault. But some had failed to appear for previous trials, or they had histories of violent crimes. They would not fare very well at this hearing.

The first defendant, a 74-year-old retiree, got into a fight at his home and was charged with second-degree assault. The retiree, who had never been convicted of a crime, was released on his own recognizance.

There was a forklift operator charged with second-degree assault who has past convictions for drug possession. He lives with his aunt, has children in Baltimore and is not deemed a flight risk. He was released on his own recognizance.

Then, there was a 27-year-old who had failed to appear for trial seven times earlier  all for cases involving traffic violations.  He couldn’t appear at the trial because he was jailed at the time on other charges. When he had appeared before a court commissioner a day or two earlier, the commissioner refused to set bail. But, the judge agreed to let him go on a $3,500 unsecured bond, meaning that the defendant will need to pay this amount if he fails to appear at his trial.

After 45 minutes, the bail review was over. Of the 12 defendants who appeared before the judge, only three had their bail remain the same. Most of the defendants that day were released to await trial, but not all. Those who were deemed flight risks, or those who had repeatedly failed to appear for previous trials were sent back to be locked up.