Justice before the trial

Many nonviolent offenders languish in jail just because they can't afford bail money

September 06, 2010|By Doug Colbert

An elected state's attorney's job is a tough one. The professional prosecutor's mission to "do justice" requires convicting the guilty and seeking appropriate punishment, while protecting the innocent and respecting the rights of the accused. Safeguarding an individual's liberty before trial also is essential, except where the defendant poses a clear danger or flight risk. Doing justice has dual responsibilities.

In this year's heated election for state's attorney of Baltimore City, media reporting on killings, shootings, rapes and robberies has pressed a frightened public to focus almost exclusively on which candidate will succeed at prosecuting the violent criminal. No surprise there.

Every community wants the perpetrators of violent crime brought to justice. People are entitled to feel safe where they live and where they walk the streets. The elected state's attorney must give violent crime high priority.

That said, Baltimore voters must consider a second crucial issue: How do the candidates plan to treat the many nonviolent offenders who make up more than 90 percent of the 68,000 people arrested last year? Contrary to public perception, violent crime reflects but 2 percent to 3 percent of arrests annually.

Media coverage rarely tells what happens after these suspected criminals first enter the system. It probably comes as a surprise that the first judicial bail hearing before a commissioner is held inside a jail, where the public and an accused person's family cannot attend, and where no defense lawyer or pretrial investigator is present to provide background information to the commissioner.

With scant reliable information about the defendant, commissioners' bail rulings result in more than 2,500 people remaining incarcerated every day on nonviolent charges. Detainees stay there for an average of 40 days because they cannot afford bail.

The racial breakdown of pretrial detainees is appalling: Ninety percent are African-American. According to court records, prosecutors ultimately convict only one out of three; they dismiss charges or decide not to prosecute the others.

Who pays for the high cost of pretrial jail at more than $100 daily, or roughly $5,000 per nonviolent arrest? Taxpayers. Additionally, many detainees lose their jobs while incarcerated and cannot support their families.

Call me old fashioned, but I believe punishment comes after conviction, when government establishes guilt, and not at the stage of accusation. In a time of financial crisis, a system that is more fair to nonviolent detainees would also be more economically efficient, saving millions of taxpayer dollars each year.

Pretrial incarceration creates anger and distrust. It also helps explain why law enforcement often receives less cooperation from the African-American community, which suffers the brunt of violent crime. How cooperative would someone be after they or a loved one lost weeks of freedom because a prosecutor never considered recommending release for a relatively minor, nonviolent charge that eventually is dismissed?

That's the current system in our city. Prosecutors review police charges and defendants' criminal records. They recommend that defendants considered dangerous receive a high bail, or even be held without bail. Even-handed justice requires that, when appropriate, they recommend release for people who are charged with less-serious crimes so these defendants can await their day in court without having to pay money for it.

For the past 12 years, my law students have found many people in jail awaiting trial and unable to pay bail of between $100 and $1,000 for crimes such as public urination, marijuana possession, traffic offenses and public-nuisance charges. Hardly any had a prior violent conviction or represented a danger to the public's safety. When students intervened and verified that many had jobs, were in school or had family support, they saved clients and the public the costs of extended jail time.

Yet, when students reported their findings to the criminal justice community, nothing changed.

The state's attorney's 24-hour release recommendation to a commissioner will make a big difference in pretrial rulings and spare jail terms for many unconvicted, low-income people. Commissioners need prosecutors' support. They still remember a colleague's firing years ago after police strenuously objected to his releasing a young mother with no prior record.

Voters should ask State's Attorney Patricia C. Jessamy and her challenger, Gregg Bernstein, whether they intend to eliminate a policy of remaining silent when people's liberty is at stake and they are accused of nonviolent crimes. Voters also might urge prosecutors to evaluate these charges much sooner and decide whether they are serious about prosecuting. That would help put a stop to the city's long and expensive process of incarcerating people unable to afford bail.

On primary day, voters should elect the candidate whom they believe will succeed both in prosecuting violent crime and in preventing pretrial injustice.

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

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