In the United States, people charged with a crime are known to be innocent until proven guilty. But many of those who are accused spend up to a year in jail awaiting trial because of what transpires during an initial step in the criminal justice process: the bail hearing. There are many problems with bail in Maryland. As a result, many low-income city residents are assigned high bail amounts, or denied bail altogether. OSI-Baltimore Community Fellow Zina Makar is in the beginning months of her fellowship, in partnership with the Public Defender’s office, to help change that.
Her goal is to represent poor defendants by employing the power of habeas corpus—a legal procedure that keeps governments from holding people indefinitely without showing cause.
Already she is seeing results, some of them unexpected. Starting in January, Makar had filed 22 petitions for writs of habeas corpus, at a pace of about two a week. But then, during the aftermath of recent protests as a result of Freddie Gray’s death, hundreds of citizens were arrested for alleged crimes such as “disorderly conduct.”
Those jailed reported deplorable conditions and treatment by city police. Some said they were held without being charged at all. Makar—whose work to date had been with indigent Baltimore City residents—now found herself an expert in wrongful bail determinations and how they could be corrected.
The day after the worst of the unrest, Makar, with help from others, wrote and filed 82 writs of habeas corpus for imprisoned protestors—men and women from all walks of life. The following day, police announced that 101 of the 250 people arrested were being released without charges. The mass release of protestors was a huge win, earning Makar media attention, but Makar is the first to tell you that her personal convictions and careful legal work alone have not always proven so effective. “I’ve lost more hearings than I’ve won so far,” Makar says. “But I can never say the judge didn’t hear me out, and I can’t say that the hearings haven’t been fair.”
From each hearing—win or lose—Makar has learned something useful for future hearings, she says. And more importantly, she’s started to notice subtle but important changes in circuit and district court judges—changes that might mean she is losing some battles but ultimately winning the war.
Why? During bail hearings, judges are supposed to state why they set the particular bail amount or why they deny bail altogether. But Makar says many use vague phrases when stating their rationale. “It makes it very hard to challenge” the bail amounts, when reviewing the court records, she says. And she notes that during pretrial bail hearings, judges are required to determine whether the state has proven whether a defendant needs to be detained or assigned bail for safety or other reasons. But in Maryland, she says, too many judges simply accept the prosecution’s allegations as true and routinely assign high bail or no bail, keeping poor defendants in jail.
Since Makar has started challenging judges’ decisions about bail, she has noticed a shift. “I’m seeing the circuit court judges creating proper records, articulating their thought processes better,” Makar says. “I’m seeing the analyses changing a little bit; judges questioning the state, holding the state to heightened burdens of proof when denying bail. And that makes me really happy. Educating the bench has been a big part of this for me.”
Makar admits there is a long way to go before true bail reform is underway. But she is optimistic that it will happen and that she is already making a difference.
“I’m learning every step of the way, even when I lose,” she says. “If you come in with good, viable arguments, the judges are willing to listen and they let me know what they think was an appropriate argument. I feel we’ve really opened a dialogue with judges and it’s helping so many clients—and not only my clients, but future clients will benefit from this.”
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