IF THE legislature adopts the proposed bail laws now under discussion, Maryland would take a giant step backward. These proposals would greatly harm Maryland's criminal justice system and they would make life more difficult for the men and women who work hard to maintain peace and keep criminals off the streets.
Research I conducted for a report on Maryland's pretrial release system confirmed what law enforcement officials have long known -- the existing bail bond industry in Maryland is the most effective, most cost efficient and most conducive to public safety of any form of pretrial release.
The alternatives being proposed would cost the taxpayers $20 million a year and would make the streets less safe. The private sector already does the job significantly better and at no cost to the taxpayers. Bail bondsmen play a critical role in getting defendants to appear for trial and in returning those who do not appear for trial.
The court system and pretrial release personnel have proved woefully inadequate in getting defendants to court at the rate that bail bondsmen do. The police are so overworked that they have no resources to track down and bring back "failures to appear."
Under the proposed bail laws, most of the burden of making sure that defendants appear for trial would be switched from the bail bond industry to the criminal justice system. The taxpayers would have to hire thousands of people to do what the bail bondsmen do now at no cost to taxpayers. The 75 new daily "failures to appear" would only increase. Baltimore currently has 100,000 outstanding warrants. The number of people running from arrest warrants and committing new crime will surely increase under the proposed laws.
By adding to government the task of making sure defendants appear for court, the proposed law would be a poor use of police resources and an expensive proposition. When we are trying to save tax dollars by "privatizing," why would we want to take something that is now in the private sector -- and works well -- and turn it over to an expensive, new government bureaucracy?
Currently, about 60 percent of the defendants are released without having to post any collateral. They have gone before a court commissioner -- and possibly a judge -- and been found reliable enough that their promise to show up for trial and not to commit any crimes while waiting for trial is good enough. The bail bond industry is left with the remaining 40 percent -- those who a court commissioner or judge has determined may not show up for trial or will harm the victim or society while released awaiting trial. Usually, we are not talking about first-time offenders.
The reality is that the bail bond industry is the key player in making sure that the least dependable 40 percent actually show up to trial. My research conclusively shows that the existing bail bond system is far more successful than the alternatives could be in ensuring that this 40 percent shows up.
If the bail bondsman does not ensure this, the bail bondsman must forfeit to the state 10 times the amount of the bail insurance premium. If the forfeiture is not paid on time, the bail bondsman and his or her insurance company are immediately barred from doing business in Maryland. That's the incentive that gets the job done right the first time, and it is by far the most effective way to make sure that defendants show up for trial.
Under the proposed laws, government employees would be hired to replace the bail bondsmen. And if their "charges" failed to appear for trial, they would still come to work the next day, and their agency would remain in business the next month.
The private sector has the "carrot and the stick" to make it work. Government would never have the incentive or necessity to perform so well.
Byron L. Warnken is a law professor at the University of Baltimore School of Law.