Delegate Kathleen Dumais

Democrat, Maryland House of Delegates District 15

Maryland’s move away from the devastation of bail

By Kathleen Dumais, Toni Holness

February 2, 2018 at 4:00 PM

Kathleen Dumais, a Democrat from Montgomery County, is vice chair of the Maryland House Judiciary Committee. Toni Holness is public policy director for the ACLU of Maryland.

No one should be jailed for being poor. Thankfully, Maryland is finally moving away from the financial devastation of bail, which destabilizes lives and households, rippling outward to entire communities, forward for generations and in often irreparable ways.

In 2016, Maryland Attorney General Brian E. Frosh (D) issued an opinion that called into question the constitutionality of bail in Maryland’s pretrial system. That opinion prompted the judiciary to enact a rule to deprioritize the use of bail, prevent courts from setting unaffordable bail and ensure that bail be used only to secure reappearance in court, not to address public safety.

The Maryland House Judiciary Committee reconvened last month to learn about the state’s progress under the rule, which went into effect July 1. The committee heard a uniform call for the development, expansion and improvement of pretrial services across the state, not only from the judiciary but also from public defenders, the State’s Attorneys’ Association and justice-reform advocates.

This was a far cry from the contentious debate that ensued in 2017 when progressive legislators and justice-reform advocates fought tirelessly and successfully to protect the Court of Appeals rule from being upended by regressive legislation pushed by the bail bond industry.

As a result of the court rule, more people are now released pretrial without bail. These are folks who pose no public safety threat and who before the rule were needlessly saddled with predatory bail arrangements.

There is also an uptick in people held without bond, which tells us that we still have some ground to cover. Maryland needs robust and effective pretrial services in every jurisdiction. The rule discourages the use of bail, so unless there are pretrial services to fill that middle ground, courts are left with the two far ends of the system: release on personal recognizance or hold without bond. Pretrial services can include job training, educational opportunities, substance-use-disorder treatment, anger management, supervision and trial date reminders that will ensure the accused’s appearance at court and help avoid further entanglement with the criminal-justice system. Moreover, the state now has an opportunity to capitalize on a heretofore untapped resource: community-based service providers, who are geographically practical, culturally proficient and likely more effective than the traditional state-centered services.

To assess our progress, we must continue to collect data about our pretrial populations — who is being detained pretrial, for what reasons, in which jurisdictions and for how long? To put it simply, our decisions cannot be data-driven if we don’t have data.

Finally, a word on needs-assessment tools — the algorithms used to guide determinations about who is released or detained before trial. The communities who are subject to these tools — in Maryland, primarily low-wage-earning black and brown folks — must be afforded basic transparency and control over which tools are used. At a minimum, that means that when the tools are acquired and revalidated, they should be subject to public notice, comment and approval.

Maryland’s judiciary took the first bold step toward correcting the dangerous and destructive course of imposing financial burdens on those who can least afford to pay. The legislature gave its blessing. Now, Maryland is well on its way to a more just pretrial system — a system in which bail is used in limited circumstances, if at all.

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