Pretrial Issue Brief

When a person has been arrested and charged with an offense, Maryland law permits the person to be held temporarily in detention before trial. The length and place of this detention may vary, depending on the amount of time needed to prepare written charges, to verify the person’s identity, to have a court “appearance” for official notification of the person of the charges and his rights, and to make sure he or she can be safely returned to the community.
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“Jail” is the traditional term for what Maryland now calls “County Detention Centers.” Detention centers are used mainly for two types of inmates: 1) pretrial detention and 2) for briefer (under 18 months) criminal sentences. State prisons are not used for detention, just for serving sentences.
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When a person has been arrested and charged with a criminal offense, “bail” means conditions set by a court for the person’s release. The purpose is to ensure: 1) that the person will return to court for trial on the criminal charges and 2) that the person will not endanger others in the meantime.

“Bail bond” means a written obligation of the arrested person, with or without a surety or collateral security (defined below), requiring his or her attendance for court hearing dates and providing for payment of a penalty sum if a violation occurs.

When Maryland Courts are not in session (at night, on weekends, on holidays, etc.), a District Court commissioner is on duty 24 hours per day to hold a hearing and to set bail conditions. However, there are certain types of offenses for which Commissioners are not permitted to set bail. Examples include serious charges (such as murder or first degree sex offenses) that could be punished by a life sentence and violations of domestic violence protection orders.

If a person has not been released by Commissioner’s action, he or she will be taken to a bail hearing with a District Court judge the next day that court is in session. If the person is not satisfied with the judge’s bail decision, he or she may seek review by a higher level of the courts.

Bail may take different forms – each with the goal of assuring compliance with bail conditions. Two major categories are: 1) “personal recognizance” – that is, a promise by the person charged to court; and 2) a “bond” either with or without security. (See definitions of “security” and “surety” below.) Occasionally, a court may order that a defendant or surety should be allowed to sign a bail bond promising to pay a full penalty, but also may permit the defendant or surety to pay only 10% of the potential penalty to be held by the Court Clerk.
A judge also may add different non-monetary conditions to a bail order to ensure public safety and health, such as a) requiring an alleged assailant to stay away from an alleged victim, b) requiring someone with alleged alcohol or drug problems to cooperate with testing or treatment, c) requiring that a person cooperate with house arrest or wear a Global Positioning System (GPS) tracking device to verify that they will not flee; and d) requiring that someone maintain contact with a pretrial supervision office to permit trial date reminders and verification of cooperation with other conditions.

Security—or a “secured bond” may involve:

• filing with the court a sum of money by cash or certified check, or, if allowed by the court, a 10% portion of sum set by the court;
• pledging a piece of property—whether real estate, personal property, or some intangible property (such as stock or bonds); or
• posting an “indemnity” – in effect, an insurance policy.

“Surety” means that a person other than the defendant signs a bail bond that guarantees the appearance of the defendant. This may be an uncompensated person (such as a family member of the arrested person) or a commercially-paid bail bondsman. If the surety is commercial, the defendant will have to pay fees, even if he or she is innocent.

An indemnity bond also commonly is referred to as “money bail.” A commercial “indemnity bond” is provided upon payment of money, known as a “premium,” to a “bail bondman”—in effect, to an insurance agent or broker.

After trial and charges have been resolved, a bail bond is considered “satisfied.” Money or property filed with the court can be returned to the person who provided it.

However, if “money bail” (a commercial indemnity bond) was used, any money paid to the bail bondsman is never returned—not even if the person had his charges reduced or dismissed, or if the individual is found “not guilty” after a trial.

The permanent loss of “money bail” payments by the person who was arrested, especially when bail is set in large amounts, may cause serious financial problems for the person, his family, and his community. The result may be increased poverty, need for public assistance, and in some cases, homelessness.

Yes. In many parts of Maryland, other U.S. states, and much of the world, an individual may be released with “pretrial supervision” until any trial date. Pretrial supervision, by agreement with the court and the person charged, may give the person a reminder—such as a phone call or text message—a few days before his trial date. In the meantime, pretrial supervisors also may require the person to appear and take a test to prove he is not using illegal drugs or alcohol, require the person to provide proof of employment, or require the person to stay away from an alleged victim. The latter could be verified by GPS, or it could require other conditions approved by the court.

• James was facing trial for a four-year old “dropsy” drug case with slim evidence: A police officer said he dropped a plastic bag containing a tiny unspecified drug, but James denied having drugs. Student lawyers verified that he lived with his 98-year old mom and worked on home improvements. But because he missed court several times, a judge ordered $3,500 bail. Twelve days later, one student-lawyer asked a different judge to lower his bail; that judge went one step further and made the bond unsecured, meaning it required no money or payment upfront, only reappearance and supervision. James made good on his promises and the state dropped the charge against him.

• Antonio spent 16 days behind bars on $5,000 bail. Neither he nor anyone he knew could afford giving $500 to a bondsman to buy his freedom pending trial. Antonio had been in and out of the system because of addiction. When a structured residency treatment program was identified for Antonio, the judge was convinced it was preferable to jail. Antonio has since made valiant strides toward being a dad and great chef again.

• Ronald was a 29-year old father of four struggling with heroin addiction; he was charged with taking the dog he recently purchased from the home where he and his ex-wife shared child care. A commissioner originally set his bail at $10,000, which was later lowered to $2,500 by a reviewing judge in the hopes that would make the $250 bond fee attainable. It did not. With the student lawyer’s help, he was eventually released on a condition that he address his drug use. He found a program, reunited with his ex-wife — who said he was a great dad and not dangerous, but needed help — and had his charges dismissed

• Brendan, unemployed and the single parent of his young son, was arrested at home one morning for failing to appear in court on an unregistered dirt bike charge. The judge imposed an extraordinary bail in his absence: $5,000 cash only, “defendant only.” After a student-lawyer presented new information, the judge granted Brendan release with supervision.

Too many low income persons are unable to pay even low money bail and must wait in detention for many months until their trial date, even for minor criminal charges. Others with middle or high income can pay and be released promptly, although there may be no difference in their circumstances besides the ability to pay. 

Before setting bail conditions or amounts, slightly more than half of all Maryland counties (13 of 24) have a “pretrial supervision unit” to gather information  about the background of the persons arrested, present at bail hearings, and supervise any persons released, if directed by the courts. (Baltimore City is referred to as a “county” here.)

However, many other Maryland counties (11 of 24) do not have any pretrial supervision units. As a result, judges may lack information to make the best possible bail decisions and, without supervisors, may decide to keep more citizens in jail until their trial dates.

In some parts of Maryland , money bail levels are set nearly 50% higher than others. For example, in Montgomery County about $15,000 is required while in Baltimore City about $29,000 is required for the same category of offenders.

Similarly, in some parts of Maryland, the percentage of jail inmates who are pretrial (rather than serving a short jail sentence) is nearly three times higher than in other counties. (Examples include the Baltimore City (85.8%) and Prince George’s County (82.3%) vs. Cecil County and Garrett County (both about 30%).

NOTE: All these statistics are drawn from the 2014 Maryland Pretrial Commission – Final Report.

While MAJR does not claim intentional racial discrimination in our pretrial bail system, it cannot be ignored that our state’s current money bail system has huge unintended consequences of penalizing African-Americans and other minorities, even before their court dates:

An extensive, five-year statistical report and analysis by Maryland’s Public Defender has found that “The mean bail amount for black defendants is 45 percent higher than the mean amount for white defendants at the initial appearance before a District Court commissioner ($48,895 versus $33,678) and 51 percent higher at the bail review hearing before a District Court judge ($54,565 versus $36,224).”  This disparity is compounded by the fact that the poverty rate is much higher among the black than the white population.

Collectively, the greater money bond requirements produce two other attention-getting numbers:

1. Data from Maryland and other U.S. states show that the number of people who are in pretrial detention because they are unable to afford to pay the money bail is disproportionately African-American. See for example Vera Institute 2015 report: “Incarceration’s Front Door.”

2. “Black defendants were charged more than $181 million in premiums by the bail bond industry—more than twice the premiums charged to defendants of all other races combined, even though only approximately 30 percent of the Maryland population identifies as black.” Maryland Public Defender report.

 Results also have been shown as wildly inconsistent in different areas of Maryland.  In a 2014 study, Maryland failures to appear (FTA) rates (from all types of pretrial release combined) ranged from below 6% in some Eastern Shore counties to more than 15% in others.

Does use of commercial “money bail” result in lower FTA rates?  Results do not show commercial bail bonds to have consistently better results than other types of bail.  To the contrary, Maryland’s statewide 2013 average showed better court appearance rates for persons able to post amounts of cash bail, or 10% of possible penalty amount from their own resources, as compared to commercial bail. Failure to appear rates are as follows: Commercial bail– 7.8%, Cash bail – 6.0%; Ten-percent bail – 7.7%)

The Public Defender’s 5-year study concluded that, in Baltimore City, the average FTA rate for all defendants on unsecured bonds (no money or security posted) was 6.3%, while all defendants posting secured bonds (such as commercial money bail) averaged 6.5%.

1. One day of jail or “pretrial detention” costs between $100 per inmate per day. By comparison, one day of pretrial supervision only costs between $2.50 per day per person.  See Modernizing Maryland’s Bail System, Abell-PJI Report of June 2016.
2. Additionally, over time, local detention centers become overcrowded and local taxpayers may be required to spend tens or hundreds of millions of dollars to build detention center expansions or entirely new detention centers. See, for example, the testimony of Capt. Michael Merican, St. Mary’s County Detention Center, at Maryland Rules Com. hearing of 11/18/16.
3. Personnel costs are increased for government-attorneys and court personnel, due to additional hours required for additional bail and bail review hearings. See 2014 Pretrial Commission Report,

 Studies show that persons held in pretrial detention — even for a few days—begin to lose their support systems. Those held longer in jail report:

• loss of jobs (25%)
• loss of housing (40%)
• serious family financial difficulties (70%).

These statistics were collected in a 2001 survey by University of Maryland criminologists from 300 cases in Baltimore City Detention Center.

Still more long-term impacts result to persons unable to afford to pay for money bail. Studies show that, when compared to persons able to pay for pretrial release, defendants held in pretrial detention are more likely:

• to be convicted after trials,
• to receive a prison sentence,
• to receive longer sentences, and
• to receive lower income for future work.

Common experience shows us that a parent stuck in pretrial detention

• may lose custody of his or her children,
• may be unable to pay child support, or
• may be unable to maintain employment to buy groceries and pay rent.

Results may include:

• children placed in foster care at taxpayer expense,
• families required to seek public assistance for food and housing, or
  homelessness.

When a “low risk” person is held in pretrial detention—losing jobs, housing, and family ties – he or she may become desperate and may seek the quickest way possible to earn money. This can include committing new offenses (or a first-time offense).  Young offenders kept in jail, coincidentally, will meet and form relationships with more experienced offenders.

Studies show the alarming impact of pretrial detention on  low-risk offenders:

• After 3 days, on average, these offenders become 39% more likely to commit another offense.
• After 7 days, on average, these offenders become 50% more likely to commit another offense.

(See 2014 Maryland Pretrial Commission report. )

Tested screening systems can be used to reduce the number of people detained for no good reason at public expense. Standardized “risk assessment” questions can identify a person who, despite an arrest, is “low risk” to commit a new offense or to miss a court date.  “Protective factors” apply to persons who have regular employment and strong family support, for example. “High risk” persons are those found more likely to commit new offense.  This is attributable to various “risk factors” such as unemployment, homelessness, mental illness, drug abuse, lack of family support, or participation in criminal-peer-groups.  These risk factors can sometimes be addressed by appropriate interventions that will reduce the likelihood of reoffense, such as providing treatment for drug abuse. Numerous studies support the value of risk assessment. See for example Risk Assessment and Structured Decisionmaking for Pretrial Release, Urban Institute, May 2022.

When community resources are available to address risk or treat a need, a low-risk person may be placed on community supervision with the requirement that, instead of pretrial detention, he or she receive and give proof of appropriate services.  These measures are called “diversions” because they direct the person somewhere other than jail. For example:

• A former mental health patient may be required to return to treatment.
• A disturbed veteran may be referred to Veterans Administration programs.
• A homeless person may be referred to a homeless shelter.
• A nonviolent offender may be referred to community mediation to attempt settlement of disputes with a consenting complainant.
• An unemployed person on community supervision may be directed to job banks or employment services.

Taken together, pretrial supervision can help reduce crime and solve social problems, even before an alleged offender gets into a courtroom.

 Marylanders have decades of experience with police officers’ use citations, such as traffic citations, parking tickets, and citations for county code violations.  Notably, even the most serious juvenile charges have been initiated via citations for more than 20 years.

In Maryland, statutes currently permit use of citations for adults only for traffic, local code violations and offenses that carry a maximum penalty of 90 days incarceration or less.  Other states permit much broader use of citations. Such expanded use is recommended, in appropriate cases, by the International Association of Police Chiefs, and by the National Association of Counties.

A study in the District of Columbia showed that, when private citizens rather than police officers swear out charges, prosecutors found the evidence to be insufficient and dismissed or otherwise resolved charges without taking them to court in approximately 40% of such cases.  See 2014 Maryland Pretrial Commission Report, p. 26.

A 2012 study confirmed that 42.8% of all Maryland District Court criminal cases originated from citizen complaints.  Yet, only four Maryland counties in 2014 required prosecutors’ early screening of such misdemeanors.  As a result, too many individuals could be required to sit in jail for months awaiting a trial date upon which the prosecutor finally may determine that charges were insufficient and should be dismissed.

Similarly, many jurisdictions have found that police and prosecutors may play important roles in identifying and diverting mental health patients, drug abusers, troubled veterans, and homeless individuals into  earlier treatment.

via:

• a standardized, nondiscriminatory “low risk” screening system for arrested individuals to identify those who can safely and reliably be released to community supervision
• “best practices” for community supervision instead of pretrial detention or money bail.

 This can be accomplished by the Justice Reinvestment Oversight Board, which is established under the Justice Reinvestment Act of 2016. See Justice Reinvestment Oversight Board statute.

 The proposed law would permit wider use of citations when appropriate, but still allow officers to arrest if

• an offense involved or threatened serious injuries,
• an offender is uncooperative,
• there are other arrest warrants or more serious charges for the offender, or
• there are grounds to suspect the offender has given a false name or otherwise may not cooperate with courts.

 (for example, failure to appear on time for an appointment with a probation officer) to ensure individuals are not detained unnecessarily, causing loss of employment or other adverse consequences.

See above for a discussion of the use of citations

  for example for mental health treatment, veterans’ care, substance abuse treatment, or community mediation with willing complainants.

 Captain Michael R. Merican, Warden of St. Mary’s County Detention Center, speaks to Maryland’s highest court on the development of pretrial services. His updated (2018) statement is here.