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Addressing racial bias in landlord/tenant law and pretrial detention

The Public Justice Center and Coalition for a Safe and Just Maryland submit recommendations to the Maryland Judiciary Committee on Equal Justice

August 11, 2021

Our courts are tasked with ensuring that all people receive equal justice under the law. But racial bias within the judicial system leads to practices and outcomes that disproportionately harm people of color. To address these issues, Maryland Chief Judge Mary Ellen Barbera formed the Committee on Equal Justice last year. The Committee will make recommendations for judicial system reforms and “ensure that judges and staff increase their knowledge and understanding of ethnic disparities, discrimination, and systemic racism, including implicit bias, micro-inequities, and micro-aggressions.”*

This summer, the Committee has sought input on how bias and discrimination show up in numerous areas of law. The Public Justice Center and allies are contributing insights drawn from years of advocacy and the lived experiences of Marylanders of color. In July, the PJC submitted recommendations related to tenants’ rights in eviction court to the Committee’s Rules Review Subcommittee. We also proposed reforms to pretrial detention, representing perspectives from the PJC and the Coalition for a Safe and Just Maryland, of which we are a member. The subcommittee is focused in large part on ways that bias exists in court rules but have indicated they are also examining court practices more broadly.

Landlord-tenant law and eviction

Every year, the PJC provides legal services to hundreds of tenants in Baltimore City’s eviction court, where we witness the many ways that the system privileges landlords and their agents over tenants. In our comments to the Rules Review Subcommittee, we explain how minimal and often unclear rules for court procedures and practices leave significant room for implicit racial biases among judges to influence interpretations of facts and prejudiced assumptions, and even devalue the life, health, and safety of Black and Brown tenants. We assert that the judiciary’s failure to apply fundamental procedural protections to landlord/tenant proceedings is a denial of due process to Black and Brown women and children that leads to depriving people of the basic human necessity of shelter.

Current eviction court practices continue a long legacy of race-based housing policies in Maryland, including redlining, gentrification, segregation, exclusionary zoning, and demolition of entire Black communities. As a result, Black people have been disproportionately denied access to homeownership and confined more often to disinvested, segregated communities. Consequently, Black residents make up a disproportionate share of Maryland renters and face the highest risk of eviction in Baltimore City, which lies in historically redlined neighborhoods. In particular, landlords and the courts evict Black women at much higher rates than white men.

With that context in mind, our comments describe areas of court procedures and practices that favor landlords and discredit tenants. We discuss judges’ lack of knowledge of and/or refusal to enforce tenants’ rights under the law, as well as judicial behavior that disrespects and humiliates tenants. We recommend ways to improve the balance of power in eviction court, including by clarifying and revising rules to give judges more direction and ensure tenants have a fair chance to make their case. We urge the courts to provide training, monitoring, and accountability for judges regarding the application of landlord-tenant law. We also call on the Maryland Judiciary to place racial equity and equal access to justice for people with low incomes at the center of its legislative advocacy. For more on these recommendations, you can read our full comments here.

Pretrial detention

Our comments on pretrial detention focus on the Maryland Judiciary’s application of Rule 4-216.1, which is intended to make a cash bail a last resort and stop the inequitable practice of locking up people before trial because they cannot afford bail while wealthier defendants can buy their way out. In practice, judges have indeed reduced the use of cash bail, but have done so by increasing the number of people held without bail. That’s not how the Rule is supposed to work.

We describe how these decisions to hold people pretrial are rooted in racial bias and have negative consequences for individuals, families, and society at large, especially for people and communities of color. The judicial system disproportionately holds Black people without bail, despite preventative detention being unnecessary in most cases. Existing pretrial release programs, especially those that rely on non-intrusive measures like phone check-ins with pretrial supervision and court hearing text reminders, are highly effective and lead to consistently low rates of re-arrest and failures to appear in court.

In contrast, the harms that pretrial detention causes are severe. Locking people up can cause them to lose their homes, jobs, and family while subjecting them to the psychological cost of being physically incapacitated and to the risk of injury or death while in jail. Research shows that pretrial detention actually contributes to crime, increases the incentive for innocent defendants to plead guilty and leaves them with a wholly unwarranted criminal record, makes it harder to mount a defense and gather evidence, and leads to more convictions and longer sentences. Pretrial detention also prevents an accused person from paying restitution, seeking drug or mental health treatment, or demonstrating commitment to educational or professional advancement, all of which might mitigate a person’s sentence or increase the likelihood of acquittal, dismissal, or diversion.

We propose simple changes to court rules to keep judges from relying improperly on preventive detention or ordering conditions of release that in effect prevent release. Our proposal emphasizes Rule 4-216.1’s requirement that court officials consider the individual circumstances in a given case when determining whether to release or hold someone pretrial and recommends that the rule clearly require a clear and detailed record of that individualized consideration. Among other things, the proposed changes would:

Read our full comments on pretrial detention here.