In Maryland jails, release often comes down to who can pay

Supporters of long-established system say it's the most efficient way

January 18, 2014|By Ian Duncan and Justin Fenton, The Baltimore Sun

In a shoebox of a courtroom at Baltimore's central booking facility on a recent day, Judge Nicole Pastore Klein worked swiftly to determine the price of freedom for men and women accused of crimes. Attempting to disarm a police officer: $150,000. Burglary, resisting arrest and drug charges: $100,000. Cocaine possession: $25,000.

Some will go free within the day, while others will likely sit in jail until their day in court. But that distinction often has less to do with the size of their bail than their ability to pay it.

The man charged with trying to disarm a police officer posted his bail that day, even after Pastore Klein cited a "risk to public safety" in setting the amount. The burglary suspect stayed in jail, unable to gather enough money to satisfy a pretrial detention system that — by design — favors defendants of means.

Of the approximately 3,000 people in pretrial detention in Baltimore at any one time, nearly 200 are stuck in jail on bail of less than $5,000 and state lawmakers are now debating whether the long-established practice is the fairest way to decide who stays behind bars. Some defendants can't even post bail of $100.

Supporters say Maryland's bail system works efficiently, allowing defendants who make bail to quickly return to their lives. Many find a bail bond company to put up the money for them — as long as they can pay a fee. That company is responsible for making sure the defendant shows up for trial.

But advocates for change argue that it is unfair to link freedom with finances, and a state task force recently recommended doing away with bail in favor of a system that evaluates only whether a defendant is a danger to the public or a flight risk.

Four states have made similar changes, as has Washington, D.C., where defendants face a judge with just two options: release or confinement. Other states, like Maryland, continue to use bail bondsmen.

Paul B. DeWolfe, who heads Maryland's public defender system and helped craft the task force recommendations, said the existing bail system does nothing to protect the community.

"The cash bail system does one thing: It separates people who have money from those who don't have money," DeWolfe said. "It almost doesn't matter what kind of crime you commit if you have resources to post bail and get out."

The task force was formed by Gov. Martin O'Malley in response to two decisions by the state's highest court, which ruled that Maryland's bail system is unfair because defendants aren't entitled to public defenders when commissioners set their initial bail. (That decision is later reviewed by a judge such as Pastore Klein.)

Faced with the estimated $30 million cost of providing lawyers for thousands of defendants each year, the state is re-examining the entire structure.

A separate state judicial panel set up to examine the issue recommended refining the system but keeping bail as an integral part. Some legislative leaders hope they don't have to change anything; they want the underlying case to come before the court again.

Among the staunchest defenders of the existing system are the companies that keep it running.

Sometimes judges allow defendants to post a percentage of the bail themselves, but typically a bail bond company steps in and agrees to pay the court if the defendant flees. The companies charge a fee that can be up to 10 percent of the bail amount. Defendants don't get that money back even if charges are dropped or they're cleared at trial.

Those in the industry say professional bondsmen do a vital job of ensuring that defendants actually come to court.

Barry Udoff, a Fred Frank Bail Bonds manger who has decades of experience in the business, said bond companies aggressively hunt down fugitives because they're on the hook for the whole amount of the bail.

"When I get a bill in the mail for $75,000, terror strikes through my heart," Udoff said. And the bigger the bail, he said, the harder a bondsman will work to get his man.

Under proposals from the O'Malley task force, the most dangerous defendants would be held in jail until trial; those deemed safe would be released. Others could be released with conditions such as checking in with an agent or agreeing to drug testing and treatment.

Different approaches

Bail wasn't on the table on a recent afternoon in a modern Washington courtroom, where defendants came before Judge Aileen Howze to find out whether they could go free.

One 24-year-old man from Northwest D.C. had been charged with possession of a vial of PCP and a bag containing six grams of cocaine, which police alleged could be sold for $600.

Howze reviewed the case, then ordered the man released pending trial — with a requirement that he undergo drug testing. He was unshackled as he signed paperwork, and walked straight out of the courthouse after providing information to pretrial services officials.

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