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Ensuring that poverty isn’t a jail sentence

Briefs provide guidance on decreasing use of pretrial detention

August 1, 2018

Whether a person stays in jail before trial or is released should not depend on how poor or wealthy they are. When someone can’t afford to pay bail, they may sit in jail for weeks or months. In the meantime, they might lose their job, and their family loses a breadwinner. In hopes of getting out, they might take a plea deal, even if they’re not guilty.

A 2017 rule from the Court of Appeals of Maryland seeks to address this injustice, directing judges to consider a defendant’s financial situation and to give preference to non-monetary means of ensuring that they attend trial. In many parts of Maryland, the rule has significantly decreased the number of people held on bail and increased the number who are safely released to the community either on their own recognizance or under some form of pretrial supervision.

Yet judges sometimes misinterpret the rule, leaving too many people locked up before trial, held without bail. On behalf of the Coalition for a Safe and Just Maryland, the Public Justice Center’s Murnaghan Fellow K’Shaani Smith has filed a series of amicus briefs to guide judges in interpreting and implementing the rule. Here are some of the problems our briefs seek to address:

When the bail is too high (and there’s no way to challenge it)
In some places, judges continue to assign bail amounts that people cannot afford. And then circuit courts deny petitions to review bail determinations without giving people a hearing. As the PJC’s brief in Bradds and Hill v. State of Maryland points out: “Data shows that when individuals filing such petitions are given the benefit of a hearing, they are either released on their own recognizance or pretrial supervision, or their bail amount is lowered to an amount they can actually afford.” We hope that our brief will help require judges to consider people’s financial circumstances before setting bail and provide due process when reviewing bail determinations.

Increase in holding people without bail
While some judges are failing to assess an individual’s financial means, others have adjusted by dramatically increasing the number of people held without bail. Statewide, that number shot up from 6.7 percent in July 2016 (one year before the rule became effective) to 25.1 percent in September 2017 (just three months after it took effect). Judges are supposed to assess whether someone is a danger to the community or likely to flee before deciding to hold them. But such a sharp increase cannot be attributed to a newfound surge in dangerous or fleeing defendants. The PJC’s brief in Williams v. State of Maryland argues that judges are improperly detaining a growing number of Marylanders and undermining the purpose of the Court’s rule.

Electronic monitoring: Not an effective pretrial alternative
Another trend finds some courts beginning to default to electronic monitoring before trial, even in cases where people might otherwise have been released without condition. Courts are even ordering that individuals pay to have their movements tracked with an ankle bracelet. If they cannot afford the cost (often several hundred dollars a month), they will remain in jail. This too undermines the Court’s rule that people should not be locked up due to their finances. The PJC’s brief in Crews v. Foster shows that pretrial electronic monitoring does not improve compliance with the terms of release for high-risk individuals and correlates with significantly increased technical violation rates for low-risk individuals. Furthermore, replacing pretrial incarceration with electronic monitoring is still a significant infringement on liberty, especially in minority communities that receive disproportionate police enforcement. The PJC’s brief argues that, instead of electronic monitoring, other pretrial release services, such as visits, phone calls, and curfews, are an effective way to ensure that people show up for trial and do not reoffend.

Pretrial detention harms individuals, families and communities
Driving the PJC’s advocacy is the damage that pretrial detention causes to individuals, families, and communities. When someone is jailed, their family can lose income, educational opportunities, and housing. Children of detainees are even affected long-term, suffering setbacks in education and lower lifetime income. With such a major disruption, detained defendants are more likely to plead guilty because they have already lost so much. Those detained are also more likely to be convicted because they are hampered in preparing their defense. And pretrial detention ironically increases crime, with detained defendants more likely to recidivate than released defendants. Considering the numerous negative effects of pretrial detention, we hope that this series of briefs will help ensure that people are not jailed because they can’t afford the financial conditions of release or improperly held without evidence of danger or flight risk.

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