Can't afford bail, so they sit in jail

December 18, 2007|By Doug Colbert

After weeks in the judicial trenches trying to keep poor people awaiting trial out of jail, my University of Maryland law students almost always have the same two questions:

Why does the state's pretrial justice system incarcerate so many people, typically 30 days and longer, because they can't afford bail?

And why does the legal profession seem to care so little about accused indigents denied a lawyer at the initial bail stage, given its respect for the 1963 Gideon v. Wainwright ruling, where the nation's highest court declared the right to counsel fundamental for ensuring equal justice?

Clinic students know from their experience in our 9-year-old bail reform project that something is terribly wrong with Maryland's pretrial system. They realize no public defender is present when the accused first appears before a commissioner and at most judges' bail review hearings. They witness rulings affecting suspects' freedom without judicial officers having verified information about the individuals' family and community ties. They are shocked to see commissioner hearings closed to the public or conducted in jail.

Student attorneys represented 45 people who had spent two to three weeks in custody. They believed many should never have been jailed.

Take the African-American, college-bound high school senior arrested for drug possession. The 18-year-old had built a good academic record until missing 11 school days in a row after being jailed following her arrest. The student attorney invited the girl's mother to court to explain why she could not afford the $7,500 bail (or $750 nonrefundable bondsman fee). The judge reduced bail to an affordable amount, and she resumed classes.

Or the 30-year-old man, also African-American, arrested for marijuana possession, who could not afford $2,500 bail. He had worked at a fast-food restaurant the past five years and despite prior arrests had no previous convictions. His attorney persuaded the employer to send a co-worker to court, along with a letter praising the defendant's sense of responsibility. With this added reliable information, this judge opted for supervision, and the defendant returned to work.

Then there was the relatively rare white detainee, a second-year college student charged with cocaine possession. She was on probation on her only conviction and could not afford the relatively modest $5,000 bond. Her attorney persuaded the judge to release her to a treatment program.

And how to explain my student's shock when a commissioner set $125,000 bail on a charge of rolling a single marijuana joint? True, the defendant had a prior gun conviction, but the reviewing judge reduced bail to $2,500, which was still unaffordable. He remained in custody 13 days until his attorney verified he had family and a place to live.

These are the untold stories in today's criminal justice system, the ones rarely reported in the media's focus on violent crime.

By semester's end, my students' advocacy resulted in pretrial release for two-thirds of their clients. Most had prior nonviolent convictions and bench warrants. Yet judges listened when the lawyers provided reliable background information. They considered supervised options. Indeed, judges approved drug treatment programs for about half of our 30 released clients.

Is it necessary to keep people jailed for relatively minor crimes because they lack money? Or to insist that families pay a bondsmen's nonrefundable fee to regain a loved one's freedom?

No.

A far better alternative exists - but it requires political courage and leadership. Our elected officials must invest in pretrial investigators and supervision. When judicial officers receive full information, they can decide eligibility for supervision. Investing in job, education, substance abuse and health care counseling for the nonviolent accused is a much better use of public funds than incarceration.

The Maryland bar also must fulfill its ethical code and "special responsibility to justice."

Lawyers must speak forcefully to realize Gideon's promise of representation for all, beginning when an accused person first appears before a judicial officer. The bar knows a lawyer makes a huge difference. It must support the cost-saving measure of funding public defenders.

Before courts recess and move to a modified holiday schedule, Maryland's administrative judges should direct defenders and prosecutors to review bail conditions of each detainee charged with a nonviolent offense and determine whether pretrial release is warranted.

Doug Colbert teaches at the University of Maryland School of Law. His e-mail is dcolbert@law.umaryland.edu.

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