Bail laws have remained stagnant in the United States for years. While the particulars vary from state to state the process was essentially the same; you get arrested for a crime, a bail figure is set and you pay the bail or you stay in jail until the trial is over or a judge decides to let you out.

But all that is beginning to change. Under pressure form civil rights groups and prison advocates, states are beginning it change how their bail systems operate. The argument civil rights groups are making is that bail is unfair since defendants without the financial means can not afford to bail themselves out of prison while their case is pending.

The laws in most states are too new to get a good read on what effort the new rules are having on pre-trial incarceration. One state where there is enough data to analyze the effect is Maryland. From the data, it appears that good intentions don’t always make good law. There are now more pre-trial inmates in Maryland than before the law took effect. A recent nation newspaper’s headline declared “Maryland Bail Reform Backfires, Drives Up Number of Inmates”.

A look at the data is telling. In Maryland, after the adoption of the new bail guidelines, release through money bail showed little impact. In Baltimore, before reforms, people who were held after their initial appearance was 51.5%, meaning over half the defendants were held in custody. After adoption of the new guidelines, that number dropped just to points to 49.5%.

How do those numbers break out? According to Trading Away Justice, in January 2018, one month before the new rules took effect, the number of people in Baltimore jails with cash bail stood at 35.6%. That number dropped to 14.8% in July 2018, several months after reforms took effect. But the number of people held without bail increased from 14.8% to 34.2%. The net effect of the reforms in Baltimore was that rather than increase the chances that a person could obtain pre-trial release, the reforms virtually eliminated any chance for pre-trial release for over a third of defendants in the Baltimore court system.

Statewide in Maryland, the numbers are similar. The number of people held with bail decreased by 11.5%, from 29.8 to 18.4. But the number of people held without bail went up from 13.6% to 22.6%. While Maryland is only one state, the early results are telling. Judges have the responsibility to ensure that dangerous people are kept away from the public and that all defendants face the charges held against them. When given a choice, most judges will resolve on the side of caution.

Are reforms in the way bail works in most states necessary? Bail is not assigned randomly. In most jurisdictions there are procedures that are followed. Among the factors a judge must consider are:

  • A bail schedule set by the State. Bail is set according to the crime or the offence committed.

  • Past record. A person with a long criminal history will mostly likely have to pay a higher bail than a first-time defendant.

  • Ties to the community. Defendants who are involved with their community are a much lesser risk to flee.

  • Past attendance record. Those who have missed court dates in the past will receive a higher bail.

Further, for most defendants, there are many options to make bail affordable. First, using a bail bondsman, a defendant is responsible for only a small percentage of the bail amount, usually 10%. Using a bail bondsman, on a $5,000 bond the defendant is only responsible for $500. Even if they can’t afford that, there are options. For instance, 3D Bail Bonds in Connecticut offers several affordable finance options.

While it is true that more poorer or minority defendants are held on a cash bail, that is more of a societal issue than a judicial one. One remedy would be education. How many people being held with cash bail are not clear about their options? If they knew about programs like 3D Bail Bonds’ would they still be in jail awaiting trial or would they be home?

When a good system shows a flaw, you don’t throw out the system, you fix the flaw.


 

Published by Inder Singh