Maryland Court Overhauls Bail System That Jails Defendants Just Because They're Poor

Maryland’s highest court on Tuesday approved key changes to the state’s bail system, setting into motion a reform designed to keep defendants from languishing in jail before trial simply because they’re poor.

In a 7-0 vote, the Maryland Court of Appeals passed a rule change that instructs judicial officers to impose the “least onerous” conditions of pretrial release for defendants not considered to be a flight risk or danger to public safety.

Under the current money bail system, judges in Maryland typically set financial conditions of release, with little consideration as to whether the defendant can meet them. Defendants must then either pay the court or a commercial bail bondsman to get out of jail. Those who can’t afford bond often remain incarcerated until their cases go to trial, sometimes for periods of weeks or longer.

Although Maryland’s new rules set to take effect July 1 may cut into the profits of bail bondsmen, they don’t entirely eliminate the industry. Judges will still have discretion to set a cash bond, except in cases in which “he or she knows or has reason to believe that the defendant is financially incapable of meeting” the condition, according to a draft proposal of the rules. The final text of the proposal will be posted Thursday.

The agreement was “the best possible proposed rule we can expect when we’re working with all stakeholders,” said Chief Judge Mary Ellen Barbera, according to The Baltimore Sun . It comes amid intense lobbying efforts from the bail bonds industry, which donated $87,000 to Maryland lawmakers in 2016.

Maryland is the latest state to take action on bail reform, following statewide efforts most recently in New Jersey  and New Mexico . Civil rights groups have also filed legal challenges to money bail systems in a number of smaller jurisdictions, claiming such practices violate the Constitution and the 1966 Bail Reform Act , which prohibits federal judges from keeping indigent defendants in jail before trial because they can’t pay.

The move comes amid broader debate about the high costs and consequences of the U.S. criminal justice system. On any given day, more than 450,000 people are sitting in jails across the U.S. while they await trial, with many behind bars only because they’re unable to pay bail.

Spending just a few days in jail can cause immense collateral damage, including loss of employment, benefits, public assistance and opportunity. Getting locked up has also been found to increase the odds of future incarceration . And these pitfalls affect all defendants, even if their cases are eventually dropped or they are never found guilty of a crime.

This form of pretrial incarceration costs taxpayers approximately $38 million every day, or $14 billion annually, according to a study recently published by the Pretrial Justice Institute , a nonprofit advocacy group that lobbies for bail reform.

Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute, hailed the change in Maryland as an important step toward addressing the state’s “unconstitutional bail system.”

“It is currently detaining legally innocent people simply because they can’t afford to purchase their freedom, while providing a loophole that allows for the release of those few who should not be,” she said in a statement.

Burdeen also encouraged Maryland lawmakers to establish a robust, statewide pretrial services department, which would be tasked with providing risk assessments to courts and monitoring defendants awaiting trial.

“It’s now up to the state legislature to pursue comprehensive reforms of the state’s pretrial system and move away from money bail towards [what] we know works: evidence-backed pretrial risk assessment and supervision,” she said.