Bail

Bail Reform Efforts Are Backfiring in Baltimore, Leading to More People Stuck in Jail

Judges were told not require cash bail from defendants who were too poor to pay. Instead they're not offering bail at all.

|

Judge Nope
Broker / Dreamstime.com

Last year Maryland's courts approved changes to the state's bail system, instructing judges not to deny defendants the possibily of release if they were too poor to afford a cash bail demand. The intent was that defendants be jailed prior to trial only if they were flight risks or a danger to the community, not simply because they didn't have enough money.

Unfortunately, at least in Baltimore, the plan is backfiring. WBAL-TV, the local NBC affiliate, reports that the number of people detained in jail is rising, even as the number of arrests is dropping. Comparing March 2017 to March 2018, the station found that the average number of people jailed each day jumped 31 percent, from 655 to 856 (Note: WRAL incorrectly reports this as a 23 percent increase). What's happening is easy to explain: Instead of making cash bail affordable, Baltimore's judges are choosing not to grant it at all in many cases where they previously would have.

Some Maryland counties have embraced pretrial services and monitoring, releasing more defendants and then keeping close tabs on them to ensure that they make their court dates. But as the Baltimore Sun noted last year, Baltimore appears to be lagging behind. WBAL reports that it's not just violent crimes and felony charges that are leaving defendants stuck in jail but also less serious offenses such as driving with a revoked license, minor theft, and misdemeanor assault.

Research shows that the reflexive use of cash bail ends up punishing defendants before they are convicted by trapping them in jail, disrupting their lives, and compounding their economic insecurity, often prompting them to accept plea deals simply to get out of jail. To address that problem, some court systems and states, including Alaska and New Jersey, are discouraging judges from automatically relying on schedules that determine bail based on the charges a defendant faces. But the bail reform movement can work only if judges cooperate, which requires assuring them that the people they're releasing without bail will be properly monitored to make sure they return to court. Judges know they are the ones who will take the heat if somebody they've released absconds or commits a new crime.

Because of this backfire, we should also be very wary about making the bail bond industry the "bad guys" when the alternatives to cash bail have not been carefully planned out. This month Google and Facebook jumped on board the bail reform movement by announcing that they would no longer accept ads from bail bonds companies. That move doesn't actually help poor defendants; it just limits their awareness of an important tool for staying out of jail while waiting for trial.

Baltimore's problems shouldn't discourage efforts to reduce courts' reliance on cash bail. But it should serve as a warning that when you force a tough choice on judges, the outcome may be the opposite of what you intended. Last fall the Cato Institute's Walter Olson, who has been watching Maryland's bail issues play out, warned, "Judges will reassign cases up or down—but there can be a bias toward up. If a judge releases a defendant who goes on to commit an atrocious crime, he faces a potentially career-ending furor. The incentive is to err on the side of lockup."

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

15 responses to “Bail Reform Efforts Are Backfiring in Baltimore, Leading to More People Stuck in Jail

  1. This month Google and Facebook jumped on board the bail reform movement by announcing that they would no longer accept ads from bail bonds companies. That move doesn’t actually help poor defendants

    Ah, but the signal it sends!

  2. Because of this backfire, we should also be very wary about making the bail bond industry the “bad guys” when the alternatives to cash bail have not been carefully planned out.

    Excellent article, Scott.

    I suspect that pretrial monitoring is expensive and requires a lot of people and infrastructure to implement.

    1. Feature, not bug.

  3. The intent was that defendants be jailed prior to trial only if they were flight risks or a danger to the community, not simply because they didn’t have enough money.

    Yeah… nobody cares what the intent was.

  4. re: alt-text

    Just market the bribes as incentives, or better yet, charitable donations. Then, all is well.

  5. I’m terribly shocked and surprised that this would happen. Oh no, wait I’m not. This was completely predictable.

    1. You would think people who claim to be so in love with markets would understand how incentives work. No judge ever got any credit for letting someone out of jail who didn’t commit a crime and showed up to court. But plenty of judges have seen their careers ruined and become pariahs for letting someone out of jail who ended up doing something awful. So, if you leave it up to the judges to decide who gets out of jail, very few people outside of the judge’s family is getting out of jail.

      Bail is a crappy system but it the best of the bad options available. If people are upset about so many people being in jail, they should look into reducing the excuses the government has for putting them there.

      1. “” If people are upset about so many people being in jail, they should look into reducing the excuses the government has for putting them there.”‘

        no comment. just thought it was worth repeating.

  6. I always wondered about the line in the Eighth Amendment “Excessive bail shall not be required”.

    1. Like the rest of the Constitution, a dead letter. Anyway, the founders never could have anticipated the needs of an advanced carceral state such as ours.

      1. It is not a dead letter. Bails are rarely excessive. The problem is that we arrest too many people, have too many laws, and many of those people are poor such that any bail is too much for them. “Excessive bail” is an objective thing not “I can’t afford it, therefore, it is excessive.”

    2. Who’s going to uphold it?

      It’s like the “speedy trial” clause, which is the other half of the “take a plea for time served” pressure. Anyone who could vindicate your right is a member of the very same profession — judge — who screwed you in the first place.

  7. government agents ensure government runs at full capacity. film at 11.

  8. Not really surprising. Why are liberal Democrat cities so dangerous and oppressive to minorities?

    The Brutality of Police Culture in liberal Democrat Baltimore, 87% of which voted for Barack Obama

    Quote:
    Victims include a 15-year-old boy riding a dirt bike, a 26-year-old pregnant accountant who had witnessed a beating, a 50-year-old woman selling church raffle tickets, a 65-year-old church deacon rolling a cigarette and an 87-year-old grandmother aiding her wounded grandson. Those cases detail a frightful human toll. Officers have battered dozens of residents who suffered broken bones ? jaws, noses, arms, legs, ankles ? head trauma, organ failure, and even death, coming during questionable arrests. Some residents were beaten while handcuffed; others were thrown to the pavement.

  9. Fox Butterworth will be dumbfounded when crime decreases.

Please to post comments

Comments are closed.