Maryland judges need more alternatives to pretrial detention, even as courts have successfully reduced their reliance on cash bail, according to a study published last week by the Maryland Office of the Public Defender.
An 8-month-old Maryland court rule aimed at releasing more defendants awaiting trial has largely been a success, according to the findings from the office’s Court Observation Project. But without an expansion of services to ensure that higher-risk defendants appear in court, judges across the state are also holding more defendants without bail.
The Court Observation Project sent members of the public into courtrooms across the state. With funding from the Open Society Foundation, the public defender’s office trained 64 volunteers to watch bail review hearings and record what happened.
The study had two purposes, according to Melissa Rothstein, director of policy and development for the Office of the Public Defender. The public defender’s office wanted to gather data on bail review outcomes since the new rule on the procedure went into effect July 1. They also wanted to inform the public about pretrial hearings.
“Despite the incredible importance of this phase of the proceedings, the general public knows very little about the pretrial process,” according to the report.
Bail reform has been an ongoing project of the Maryland Judiciary. Maryland Attorney General Brian Frosh (D) released an opinion in October 2016 that the state’s existing cash bail system was likely unconstitutional. Since then, the state has started taking steps to make defendants’ conditions of pretrial release only as onerous as necessary to ensure they appear for court dates and to protect the victims and the community.
Although the majority of the 1,652 hearings observed were in Baltimore County and city, volunteers reported back from 13 Frederick County hearings.
The data they collected was consistent with a News-Post analysis of Maryland Judiciary data released earlier this year. In Frederick County, the number of defendants released on personal recognizance had increased 16 percentage points since Maryland’s new court rule took effect July 1.
Court Observation Project volunteers in Frederick County did not see any defendants ordered to pay bail to get out of pretrial detention.
“No money bails were imposed at the Frederick District Court bail reviews observed [by volunteers],” Rothstein said in an email.
But the number of defendants being held without an opportunity to post even high bail also went up. In Frederick County, the number of defendants held without bail from July through December 2017 also increased 11 percentage points over the same time in 2016.
Based on the data gathered in the court observation project, the Office of the Public Defender recommends providing judges with more alternatives to detention that ensure defendants show up in court and creating metrics for better assessing the risk of releasing defendants.
“Observers generally felt that too many people were held without bail, but were sympathetic to the lack of options available to judges,” the report reads.
Observers also thought the review hearing, which lasted on average 6.3 minutes, did not give judges enough time to properly assess how much of a flight risk defendants pose.
In Frederick County specifically, other pretrial alternatives to detention are needed, Rothstein said, particularly drug-addiction treatment services.
“The opioid crisis in particular has created a population of defendants in Frederick who would be better served by treatment services than a jail cell,” Rothstein said. “While Frederick has a pretrial services [program] that screens each individual prior to their bail review hearing, they need additional resources to provide appropriate treatment referrals.”
Frederick County offers a drug treatment court program that gives people convicted of drug crimes an alternative to incarceration after they plead guilty.
The Rockville-based Pretrial Justice Institute gave the state of Maryland a C grade on its November 2017 “State of Pretrial Justice in America” report. Executive Director Cherise Fanno Burdeen said Maryland has made progress toward functionally eliminating the use of cash bail. Now, courts in the state need better tools for assessing how likely defendants who are held without bail are to appear for their court dates if they were released.
“That’s the missing ingredient,” Burdeen said. “Right now, the preventative detention net in Maryland is wide.”