AS MARYLAND considers reforming its current bail and pretrial release practices, legislators will soon face a stark choice. They may choose to maintain the huge profits bail bondsmen make by charging nonrefundable 10 percent fees and exercising a near monopoly on people's pretrial freedom. Or they may take a progressive step by providing families the alternative of depositing the fee in court and having it refunded after the case concludes instead of surrendering this money to the bondsman.
Currently, people arrested and given bail usually have no practical alternative but to pay a bondsman's 10 percent fee of the total amount to avoid spending the next month or longer in jail. Few own property or have sufficient savings available to guarantee the full bond amount.
Refundable 10 percent cash deposits, permitted by law, are rarely allowed in bail rulings by commissioners and judges. A two-year study by the Abell Foundation revealed that only three of 100 detainees statewide gained release through refundable deposits. Many Maryland counties hardly ever use the 10 percent option.
Consequently, the choice facing Maryland arrestees who are not released on recognizance is to remain in jail until trial or pay the bondsmen's nonrefundable 10 percent fee. Those with jobs to protect or dependents to sustain often do pay, usually from money designated for rent, food and other necessities.
The bail bond industry prospers from the price tag placed on individual freedom. Revenue estimates range from $40 million to $170 million annually.
Those unable to afford bail or the bondsman's fee include many people charged with nonviolent crimes. One of them was Juan C., 51, who spent 29 days in jail in January because he declined to pay the bondsmen's $550 fee on two suspended license charges he received in 1997.
Knowing his family's precarious economic circumstances, Mr. C preferred to stay in jail. But when informed that the law provided for a refundable 10 percent cash option, Mr. C became interested. A judge thought this option fair, noting the defendant had verified seasonal employment for the past eight years, no criminal convictions and strong family support. Mr. C returned days later, resolved both cases, and paid the monthly rent with the returned money.
Bills now before the legislature sponsored by Sen. Delores G. Kelley, a Baltimore County Democrat, and Del. Lisa A. Gladden, a Baltimore City Democrat, would mandate the 10 percent option for people charged with bail-eligible crimes. The legislation makes sense. It is fiscally sound and costs next to nothing to implement. It saves taxpayers the expense of unnecessary pretrial incarceration, reduces economic hardship and provides localities with additional revenue by collecting interest on the refundable 10 percent deposit accounts.
It provides defendants added incentive to appear and recover the deposit money, and encourages family and friends to become part of the defendant's circle of responsibility.
It gives working people and those with low incomes an equitable alternative to the bondsman while also preserving the bondsman's option. It promotes public safety by benefiting people facing nonviolent charges and excluding defendants not entitled to bail or who previously were charged with failing to appear.
While the bill's merits are compelling, bondsmen are working hard to defeat it. Their usual arguments - that they are the best at getting defendants to court and apprehend absconders at little public cost - are greatly overstated and have been consistently rejected by the American Bar Association. The pretrial systems of the federal courts and of other states supervise most low-income defendants charged with nonviolent offenses rather than relying on bondsmen.
The 10 percent option is an important step toward overall reform and allowing the system to operate in a manner that would be less discriminatory and fairer. It would be a no-brainer but for the bondsmen. Their opposition is easy to understand: Returning 10 percent deposits to families is bad for business. More difficult to understand would be rejection by legislators of a measure that eliminates an unnecessary and onerous tax on freedom.
Doug Colbert is a law professor at the University of Maryland Law School.