Money Bail and Its Role in Mass Incarceration

University of Baltimore Conference on Bail Reform – 11/17/16


  • Dean Ronald Weich and Prof. Colin Starger

Professor Starger discussed mass incarceration and its implications for American society. It has become a big issue and is ready for reform. He posed the question “How do we de-carcerate?” Mass incarceration is not a single thing; it’s a hydra, and all heads need to go. There have been other hydras, e.g., racial segregation; it takes a long time and much effort to make changes.

Dr. Starger stressed that money bail is a moral and a strategic issue; 20% of those locked up are in the pretrial stage, so they are technically innocent.

Framing the Issues

  • Paul DeWolfe, Maryland Public Defender, Office of the Public Defender
  • Tiffany Harvey, Deputy Counsel for Civil Rights and Legislative Affairs in the Office of the Attorney General for Maryland
  • Tara Huffman, Director of Criminal and Juvenile Justice Program, Open Society Institute (OSI)-Baltimore
  • Shannan Wise, former OPD client
  • Moderator: Zina Makar, Clinical Fellow and Co-Director, UB Pretrial Justice Clinic

Paul DeWolfe explained the pre-trial bail process. The U.S has 5% of the world’s population, but 25% of the world’s inmates. The pre-trial process is important, as it is the front door to incarceration through which 11-12 million people pass each day. Money bail is the driving force to mass incarceration and penalizes the have-nots unfairly. DeWolfe favors evidence-based assessment with community supervision as an option when incarceration is not necessary.

Two case studies were discussed. They showed how the cash bail system can wreak financial havoc when a person can’t pay bail. The Maryland rule is pretty liberal in theory, but bail amounts are assigned randomly and are all over the map – some are very high, and some are very low. The bail amount is set by a judge and/or a commissioner. Judges may arbitrarily stipulate that bail is to be paid only by the offender and no one else.

Shannon Wise, a former Office of the Public Defender client, shared her personal story. She spent five days in jail, during which time she was not able to take care of her children. During that time, the judge raised her bail from $30,000 to $100,000. She still faces issues from the ordeal and is just getting by.

Tara Huffman noted that the “nature of a bureaucracy is to sustain itself,” yet many states have begun to reform their pretrial bail systems. When compared to other states, Maryland is behind the times in its pre-trial program. The Abell Report analyzed Maryland’s pre-trial bail system and made recommendations for its reform. There have been two task forces already, but the legislature has not taken the recommendations so far.

Other states are taking steps to improve. Some are using risk-based measurement where a low score advises release, a medium score advises release with non-monetary conditions, and a high score precludes release. For more information on this topic, see the Pre-trial Justice Institute website.

Huffman recommends using objective admissions criteria based on evidence-practice. Decisions can be made before evidence is produced or witnesses are brought forward. Culture and tradition should not be used to justify current practices.

There are a number of obstacles to reform in Maryland. Systems don’t change easily, so practices based on culture and tradition continue. There are also financial incentives to keep using money bail; people are making money from the system. It’s a business for bail bondsmen, insurance companies, and private attorneys. (Public defenders do not benefit financially from bail charges.)   At the moment, a Hearing of the Standing Committee on Rules and Practices is focusing on pre-trial detention. A possible amendment to Rule 4-216 would specify that the financial status of the defendant must be considered.

Tiffany Harvey asked, “How did we get where we are today?” Maryland’s Attorney General has stated that the current approach is unconstitutional; people should not be jailed simply because they are poor. The defendant’s financial condition and employment history should be considered.

Responses to Audience Questions

Speakers stated the following in response to audience questions.

Many wardens and others are in favor of change; they know people are in jail who shouldn’t be. The proposed rule cannot mandate the use of a risk-assessment instrument (of which there are several). It can only recommend. There is a need for a statewide mandate for such an instrument. Only poor people have a bail review, which usually increases bail, even though increasing bail is unlawful. We need to ask, “Should there be bail at all?” For more information, see the report by the Maryland Public Defender’s Office: “The High Cost of Bail.”

As far as failure to appear is concerned, secured vs. unsecured bonds give equal results. With a secured bond, the defendant pays 1% or 10% of the bond at the time of release. With an unsecured bond, you pay only if you don’t show up for the court date. Baltimore’s Open Society Institute has posted several reports related to the impact of money bail.

An education effort is needed; the public in general is not aware of this issue.   Referring to the report by the Office of the Public Defenders on the High Cost of Bail 2011-2015, De Wolfe broke down by zip code the money spent on bail. Corporate bond premiums cost $50 million per year, not including interest and fees. In 5 years, $75 million was paid for corporate bonds when defendants were found not guilty. DeWolfe claimed that millions come from the poorest neighborhoods.   African Americans are charged higher premiums than others.

Pre-trial Data and Evidence-Based Reform

  • Seema Iyer, Associate Director, Jacob France Institute/Baltimore Neighborhood Indicators Alliance
  • Michael Resnick, Commissioner of Pretrial Detention and Services, Dept. of Public Safety & Correctional Services
  • Erek Barron, Delegate MD House of Delegates
  • Moderator: Colin Starger, Professor and Co-Director, UB Pretrial Justice Clinic

Michael Resnick stated that public safety is the #1 issue. If 56% of people in jail are released within 2 weeks, why are they there in the first place? Different entities collect data differently and use different data. We need more pre-trial supervision, such as reminder calls for appointments, rather than putting people in jail. Pre-trial supervision costs about $13 a day vs. $137 a day for incarceration.

Erek Barron noted that public health issues are also important. Public health and criminal justice should go together. Coordination is needed among various organizations.   There are disparate IT systems that still need work. Policy should be data driven; data often shows that policy goals are not matched by reality. Good data drives a bill forward, but data can also pinpoint counter-intuitive reality. Data may show something you don’t want it to. You need to be sure to look at that, too.   We need to listen to people who are more interested in public safety. Data has recently shown that dangerous people are being released on bail.   Defendants who pose a risk because of their connection to guns should be kept in jails and not released.

Seema Iyer, of the Baltimore Neighborhood Indicators Alliance (BNIA), showed slides of community profiles of neighborhoods. (See the Jacob France Institute website for more on this.) The profiles show that some policies affect all neighborhoods. There are many different sources of data. “Vacant and Abandoned Housing” doesn’t mean the area is empty; people actually live there. The neighborhood of Sandtown – Winchester is high for this indicator and also has lots of TANF clients, is over-policed, has the highest rate of incarceration, and high corporate bonds amounts. Data can be hard to get, so make sure it answers the questions asked and is needed.

Responses to Audience Questions

Speakers stated the following in response to audience questions.

You’ve got to mobilize people if you want change. Be strategic and plan. We don’t have money, but we have voters; we can cram hearings, lobby, and use the media more.   Disparity by neighborhoods means disparity in outcomes and disparities in funding, for instance, money for police vs. education. We should ask what the data shows about results: for instance, does drug treatment result in a lower crime rate? Budgets should be re-done to shift resources, but we’re not doing it.

Towards Solutions

  • Cherise Fanno Burdeen, Chief Executive Officer, Pretrial Justice Institute
  • Tara Boh Blair, Executive Officer, KY Dept. of Pretrial Services
  • Jocelyn Simonson, Professor, Brooklyn Law School
  • Moderator: Douglas Colbert, Professor and Director, UM Access to Justice Clinic

Cherise Fanno Burdeen says, “Bail Reform Begins with the Bench.” See the Website of the Pretrial Justice Institute (PJI) for more on this.

Criminal justice reform is a runaway train. It’s time to replace a money bail system with a risk assessment system.   Most incidents of failure to appear are not caused by flight behavior, but by circumstances such as forgotten appointments, or an inability to get transportation. Criminal activity may occur to pay off bail bond. There are different models across the country that could be examined. The PJI recommends replacing money bail with risk assessment. Only 2 -3% of defendants should be retained.   We need to hold the system accountable through litigation and by engaging the legislative, judicial and executive branches of the government. Lawsuits can be brought for illegal detention. Cities can be encouraged to avoid lawsuits by complying. The media can also help. Both large and small jurisdictions respond to changes. Public defenders should be at policy and leadership meetings.

Tara Blair shared what has happened in Kentucky, which has abolished bail bondsmen but not money bond. Money is paid to the court and returned regardless of the outcome of the trial. 76% of detainees are released and up to 90% are released if they have no other issues. Cases are disposed of within 72 hours. Judges are required to state the reason for money bail and must consider the individual’s financial ability pay, but it doesn’t happen in practice.

Litigation is needed to eliminate cash bond. A risk assessment tool includes only prior convictions and current age. Tara stressed the need to ensure that the risk assessment tool is validated. She recommends looking at racial disparities between bail conditions.

Jocelyn Simonson stated that the criminal justice system is meant to be democratic. There are community bail funds set up by people who get together to collect money to post bail for community members and strangers. They tell the stories of people who need bail. There are alternate versions of bail reform; we could abolish pre-trial detention altogether. Does representation make a difference in bail decisions?

Defenders should be involved in policy discussions.

Douglas Colbert says that we need the bailbondsmen’s voice here.

Responses to Audience Questions

Speakers stated the following in response to audience questions.

Some pre-trial risk assessment instruments ask for information about home ownership, mental health issues and education level, which tend to skew results.   Don’t confuse FTA and flight risk. FTA just means you didn’t show up in court; it doesn’t mean you are running away.   PSA, a risk assessment tool from the Arnold Foundation, is more objective. Judges sometimes make decisions based on pet peeves, so we need risk-assessment tools.

However, risk assessment is only a recommendation. There is a marketing problem with the term “high risk.” It should never have been used.

We need data analysis. For instance, we need breakouts for gender and analysis of outcomes, not just initial bail decisions. We need to use the tools of pre-trial supervision – court date reminders, maybe a drug test, checking on a bracelet, but not too many. More requirements usually predict failure.

A video of presentations made at this symposium is available through the University of Baltimore School of Law. Also see the resource page.

For more information, see MAJR’s new issue brief on pretrial issues.

MAJR thanks the following notetakers for this report: Deborah Friese, Candy Clark, Caroline Hadley, and Meg O’Regan