The fallout from the Freddie Gray protests has brought long awaited attention to the significant problems that have plagued Maryland’s bail system for years.
While civil unrest may have eased in Baltimore City, many of the individuals swept up in the police crackdown are still in jail—going on two months later—as they await final judgment of their criminal charges. These defendants remain incarcerated on prohibitively high and unaffordable bail amounts waiting for trial, notwithstanding their vague charging documents.
How is something like this allowed to happen?
In Baltimore, people who are charged with a crime may be assigned a bail amount by a judge and released before the date of their scheduled trial. The imposition of bail is based on two inherently subjective determinations factors: (1) whether the defendant poses a flight risk and (2) a determination of whether the defendant is “dangerous,” which is based on the nature of the current allegations and any prior criminal record.
But there is another factor that is rarely discussed at bail hearings and it’s the most relevant—the defendant’s economic status. The majority of people charged with crimes in Baltimore City are indigent. By law, judges are required to look at financial ability when making a bail determination; however, too many judges in Maryland routinely assign unreasonably high bail or no bail at all—keeping poor defendants in jail. Because of the bail decision, defendants often are faced with two undesirable options: either come up with the equivalent of several months’ rent to secure a bail bondsman to post bail, or sit in jail until trial.
Incarceration is a form of punishment. Citizens accused of committing crimes in the United States may be punished, but only after a full and fair hearing that results in an equally fair judgment of guilt. Without a full and fair trial how can we be sure that the detention is “the least restrictive means”—an important legal term—of securing the defendant’s appearance at court or “the least restrictive means” of keeping the community safe? We cannot unless there is a check on the bail system.
Enter the writ of habeas corpus.
The writ of habeas corpus is a legal tool that keeps governments from holding people indefinitely without showing cause. In the pretrial context, it is used to challenge wrongful bail determinations. When effective, it does more than just release individuals from pretrial custody; it gives them back a bargaining chip that was once in the State’s hands. For example, a defendant is much less likely to take a guilty plea and more likely to fight the charges against him when he is not sitting in jail.
Since January, I have been filing writs of habeas corpus for poor Baltimoreans regularly, challenging wrongful bail determinations for individuals charged with committing crimes. But this is not a case-by-case problem.
The protestors sitting in jail nearly two months after Freddie Gray’s funeral are shining a national spotlight on some of the problems with our entire bail system. Reform is long overdue.
Among the changes that need to be made are:
- Altering the legal standard used to set bail;
- Removing bail bondsmen (whose practices are often predatory, particularly for poor defendants) from the equation, and finally;
- Placing a check on the length of time a defendant sits in jails prior to trial.
Without reform Baltimore City’s bail system will continue to promote a culture of forcing poor defendants to fight for their innocence when, instead, the burden is supposed to be on the State to prove guilt. Bail that a defendant cannot meet is de facto punishment. It is punishment for families, for the community, and most importantly for the defendant who must be presumed innocent.