Study: Money bail system disproportionately impacts poor, black communities

The image of overcrowded jails packed with defendants awaiting trial is easy to conjure. But the other side of the picture—those who manage, often just barely, to pay for their freedom in cash, is a less tangible image marked by a tedious web of contracts, payment plans, and debt.

In an effort to quantify this side of the pretrial experience, the Maryland Office of the Public Defender this week published the report "The High Cost of Bail: How Maryland's Reliance on Money Bail Jails the Poor and Costs the Community Millions," with new numbers drawing striking conclusions about the impact of bail bonds and whose money fuels the bail industry.

The findings, as with the Department of Justice report on the Baltimore Police Department, conclude what many had already felt they observed: The widespread use of money bail and the non-refundable premiums charged by bail bondsmen disproportionately impacts black defendants from the state's poorest communities, many of which are in Baltimore City.

The day the study was released, the American Bar Association President wrote to letter Maryland's legal practice and procedures committee warning that the state's bail practices are not aligned with ABA standards, nor with the Constitution, which states that "excessive bail shall not be required."

The OPD study found that Maryland District Court defendants, presumed innocent and awaiting trial, and their loved ones shelled out $256 million—or $51 million per year—in premiums to corporate bail bondsmen between 2011 and 2015.

Of this amount, $113 million was accrued in Baltimore City alone, and the zip codes paying out the most were two of Baltimore's poorest: Park Heights (21215) and Sandtown-Winchester (21217), which paid at least $22.6 million in premiums—enough to provide a year of childcare for 2,800 prekindergarten children in the City, the study notes.

In one of its most striking conclusions, the study found more than $75 million was paid out to bail defendants who were ultimately found innocent—more than double the amount paid in cases resulting in a conviction. "The expectation that a presumptively innocent person must pay for his or her freedom is especially egregious for individuals who are ultimately not convicted," the authors wrote.

To draw their conclusions, the OPD scraped electronic court records from 700,000 cases across 18 District Court jurisdictions in Maryland. Its authors predict their findings are a vast underestimation of the true cost of bail bond premiums, due to the limited scope of the data—for example, it doesn't take into account fees racked up through debt collection and court costs when payees default.

The findings come amid fierce debate around the constitutionality of money bail in Maryland, which posts some of the highest bails in the country. Attorney General Brian Frosh penned a letter last month advising courts that setting out-of-reach bail was likely unconstitutional, writing that too many defendants end up behind bars simply because they can't afford to post bail. But with the help of a bondsman, for those willing and able to put up cash, chances are there's a payment plan with a minimal credit check to suit your needs, making them an irresistible option for many defendants and their families, regardless of long-term affordability.

Bail bondsmen must charge 10 percent of a defendant's full bail amount in exchange for ensuring a defendant shows up to court. For those who can't pay that up front, generally bondsmen ask for a 1 percent down payment, and set up a payment plan for the rest. The credit threshold is low: proof of employment and a bank account is usually sufficient. So if your bail is $100,000; you'll pay $10,000 of that to the bondsman regardless of whether you're convicted.

To soften the blow, you might pay that off in $100 monthly installments. To ensure their fee is met, these contracts often have several co-signers—maybe your aunt, your sister, your brother and your cousin went in on it together—and they are all fully responsible for the full amount of that debt regardless of the outcome of your case.

It's a vastly different story for those with significant cashflow. If you're able to front the entire amount of your bail to the court, you reclaim the full amount when you come to court. For defendants without significant cashflow, bondsmen or jail are the two options.

Neighborhoods that paid out the most in corporate bail bond premiums had household incomes well below the Maryland median of $74,149, according to the study. The mean bail amount for black defendants was 45 percent higher than that of white defendants at the initial appearance before a commissioner. While only 30 percent of Maryland's population identifies as such, black defendants were charged $181 million in premiums, more than double the premiums of all other races combined.

The authors note that the racial disparity in bail bond payouts does not mean that commissioners set bail with a racial bias—the study doesn't control for the many factors that contribute to how bail is set. But, they write, the numbers nonetheless illustrate a troubling disparity: "The money bail system, regardless of the underlying cause, has the consequence of imposing more onerous financial conditions of release on black defendants."

The findings will serve as fresh ammo for those advocating for bail reform, but have already been contested by the bail bond industry.  

The study concludes, like many proponents of bail reform, that "unsecured bond" system is the way forward, which would release defendants and require them to pay a predetermined amount only if they fail to show up to court. This approach would cut off the bail industry's lifeblood, the non-refundable 10 percent premiums.

Mark Adams, organizer of the Maryland Bail Agents Association, says they rarely claim that in full, though bondsmen are required by law to seek the full amount by all means necessary, including debt collection.

"You know when you do the transactions that people don't have the money. You're facing the dilemma of writing it off, or facing putting the person into bankruptcy," says Adams.

Adams insists the bail industry provides an indispensable service of ensuring, come hell or high water, that defendants show up for court. They call families, employers, friends, or if it comes to it, someone like "Dog: The Bounty Hunter."

"When our people don't show up we're pretty good about getting them back," he says. "We tell whoever signed (the bond contract) for them, if they don't come in you're gonna owe a whole lot of money," says Adams, who advocates for less prohibitive bails across the board—that's something the industry and its critics tend to agree on.

"If you have to put a $200,000 bounty over someone's head, maybe that person shouldn't be released," he says, adding that no defendant should be released on an unsecured bond, a practice that has already undercut the bail industry somewhat.

"But the problem with unsecured bonds is people don't show up," he says.

But the OPD study estimates that the failure-to-appear rate between secured and unsecured bonds is about the same—6.5 and 6.3 percent, respectively.

Speaking to the City Paper, Adams questioned the validity of the OPD's numbers, and says he is in the process of compiling his own.

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