The Eighth Amendment of the U.S. Constitution is a safeguard against excessive punishment. It reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
In Frederick County and around Maryland, people who present no threat to public safety sit in jail awaiting a trial to establish their guilt, or in some cases, their innocence. They sit in jail at substantial cost to the taxpayer instead of working or caring for their family and paying taxes.
According to the Maryland Alliance for Justice Reform, for a single pretrial detainee the cost can range from $83 to $153 per day. The Governor’s Commission to Reform Maryland’s Pretrial System 2014 Report showed that in Frederick County more than half of those arrested are held in pretrial detention — with the majority being held for over 90 days.
Of course, some arrestees represent a danger to our community and the case against them is strong, making them “high risk.” We want to keep them in jail before trial and after their conviction until their sentence is served. In Frederick County, however, there is no systematic assessment to determine who is high risk and who is not.
Those not deemed high risk are not likely to reoffend prior to trial, are likely to appear in court when required to do so and are deemed low risk. The low-risk detainee may remain in jail because he cannot afford bail while someone who presents a greater risk but can afford bail may be released. The current system of bail has a disparate impact on the poor and lower-income populations.
The Maryland Office of the Public Defender’s November 2016 report, “How Maryland’s Reliance on Money Bail Jails the Poor and Costs the Community Millions,” said that whether people have the money for bail is a key determinate in making them subject to pretrial detention.
The report further states that from 2011 to 2015, $256 million in nonrefundable charges was paid to bail bondsmen, $75 million of which was paid in cases where subjects were not found guilty of a crime.
These secured money bonds are reportedly no more effective in guaranteeing a defendant’s appearance in court than unsecured release.
Often the money paid for bail comes from those who can least afford it. It can have an adverse impact on both the immediate and extended family. It is often necessary for the accused to have to borrow money from family members in order to make bail. Those who can’t make bail remain incarcerated and risk losing their jobs and their families become dependent on their extended family, friends and social services at taxpayers’ expense.
Money saved through reforms that reduce jail populations can be used to expand drug treatment and prevention programs. This could have a positive impact on the heroin epidemic that continues to plague our community.
Maryland Attorney General Brian Frosh as well as the American Bar Association have recognized the shortcomings of the current system of pretrial detention. It is seen as discriminatory, unfairly affecting the poor and minority population.
Our state Legislature has an opportunity to improve the system of pretrial release in this session by supporting the 2017 Maryland Pretrial Justice Reinvestment Act.
As more attention is being focused on criminal justice reforms, reforming our system of bail and pretrial detention should be a priority. It will introduce a measure of economic fairness to the system while providing an opportunity to better utilize taxpayers’ crime-fighting dollars.
Karl Bickel is retired from the Department of Justice and has been a city police officer, assistant professor and second in command of the Frederick County Sheriff’s Office. He writes from Monrovia. He can be reached at KarlBickel@comcast.net.