Maryland's pretrial detention is unfair [Commentary]

Delays in reform lead to added taxpayer expense and unnecessary incarceration for some defendants

December 07, 2013|By Doug Colbert

Changing a pretrial justice system challenges every principal player to do things differently.

That's the situation Maryland's elected officials, judges, prosecutors, public defenders and pretrial investigators face as they encounter the most monumental transition in pretrial justice since the Supreme Court recognized a poor person's constitutional right to counsel in 1963.

This fall the Maryland Court of Appeals issued a constitutional mandate that promised a public defender to poor people when their liberty is first at stake. And weeks ago, a state task force heard a recommendation that Maryland judicial officers forego monetary bail in most situations and use an objective risk assessment to determine the probability of a defendant fleeing or endangering others.

While both suggestions would vastly improve our current system, there appears to be resistance to each.

Newly-arrested people in Maryland — typically low-income African-Americans facing non-violent charges — are still going to their initial appearance hearings without a public defender. And the state's attorney general asked the appeals court to reconsider its ruling.

While the court rejected the do-over request, it also declined to order immediate representation. That encouraged more push-back and delay, and, predictably, nothing has yet changed — including funding for the Public Defender's office.

Judicial officers continue to order monetary bail, absent information from public defenders and pretrial investigators. And many people accused of non-violent crimes can expect to spend Christmas and New Year's in jail awaiting trial.

Whatever happened to the old-fashioned idea of state officials following a high court's constitutional ruling?

A risk-based assessment, one that still took into account input from the principle players, would change the system so that pretrial freedom would no longer depend on the defendant's wealth. Instead it would rest upon a fact-based evaluation of whether a person posed a significant public danger or was likely to flee. It would free taxpayers from paying the high cost of unnecessary incarceration and improve community safety by preventing dangerous defendants from purchasing freedom.

Risk assessment also provides a transparency often lacking when judicial officers rule without such a tool. Too often, bail bears little relation to defendants' financial reality. Over time, a trustworthy risk assessment enhances public respect for even-handed justice.

The current money system benefits the bail bond industry and friends, who share in the handsome profits generated when people are desperate to gain release from jail. Bondsmen claim that paying their 10 percent fee — rather than pretrial supervision and denying bail — best protects public safety and ensures reappearance in court. But many pretrial justice experts and law enforcement members disagree.

The risk assessment provides a reasonable, viable alternative.

The advocacy of professor Doug Colbert and his students at the University of Maryland School of Law led to the ruling requiring that public defenders appear at all bail hearings. His email is

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