Proposed changes may result in judges decreasing reliance on cash bail

The state's highest court is considering major changes to the rules that govern one of the most controversial elements of the criminal justice system: bail.

If approved, the rewritten rules would set in stone what Attorney General Brian Frosh recommended a few months back: that cash bail be considered only as a last resort, and when it is, that a defendant's ability to pay be taken into account. The state constitution requires that the "least onerous" conditions of release be applied, but in practice, cash bail has become a default option. The proposed changes would require judges to consider a long list of other options, such as travel restrictions, before resorting to cash bail. Releasing defendants on their own recognizance would be the default choice.

Members and supporters of the bail industry have united against the changes. This is not surprising since the bail industry almost certainly stands to lose money under this arrangement. If fewer judges are relying on bail or are setting lower bail amounts, business for the bail industry will decline—some industry insiders say it already has. But bail supporters and industry representatives insist the service protects public safety and a defendant's right to liberty ahead of trial.

The General Assembly, which reconvened this week, is also expected to see a number of bills on the topic this session. Insiders say one bill, unlikely to pass, proposes nixing cash bail altogether; others could be geared toward halting any changes that hurt the bail industry, which has lobbied Annapolis lawmakers.

Concluding a six-hour public hearing last week, the Court of Appeals voted on the matter, and while it didn't pass, the rules committee now has the opportunity to go back to the drawing board to address concerns raised by the judges, refine the proposal, and present it again in February.

Around two dozen speakers came forward at the hearing. Former U.S. Attorney General Eric Holder, a well-known proponent of bail reform across the country, spoke in favor of the rule change, telling the panel of judges that alternatives to bail like travel restrictions have "proven effective," and lamented that the court system "has grown overly reliant on money bail."

Attorney General Frosh argued that the use of cash bail disproportionately impacts poor minorities, and does nothing to ensure public safety. Office of the Public Defender figures show that the mean bail amount for black people is 51 percent higher than those for whites in similar circumstances.

Former Solicitor General Paul Clement disagreed. Speaking out against the rule change, he argued that bail must be one of the options "on the menu." If it's not, requiring a defendant to "either wear an ankle bracelet or stay in jail… is equally unconstitutional," he said. "Bail, simply put, is not a threat to liberty." He told the Baltimore Sun after the hearing that he had appeared on behalf of Lexington National Insurance Corporation, a major bail industry underwriter in Maryland.

But well ahead of rewriting the rules, the impact of Frosh's letter recommending changes to the bail system had already been felt by defendants, the courts, and the bail bond industry.

Chief Judge John P. Morrissey told the hearing that since Frosh's guidance in October, things have already changed. Since then, he said, judges have released more defendants on their own recognizance, rather than set low bails that may still be crippling to poor defendants. And on the other end of the spectrum, judges considering defendants who were dangerous or a flight risk were more likely to keep them behind bars, rather than setting a very high bail, knowing—or hoping—that the defendant won't make it. (Judges always have the right to deny bail completely if they think someone is dangerous.)

Both of these trends siphon business from the bail industry.

As Rules Committee Chairman Alan M. Wilner urged, if a defendant is a flight risk or dangerous enough to justify a high bail: "Don't set bail at amounts that you think [defendants] can't afford. Because they might surprise you." He drew on studies of places that instituted simple reforms that resulted in significant improvements in people's likelihood to show up for their scheduled court dates. Nebraska used postcards to remind defendants about their court dates, he said. And he held up states such as Kentucky and Wisconsin, which have nixed commercial bail altogether, as examples of successful bail reform.

But defense attorney Caroline Alvarez, who testified without affiliation, told the panel that the news of relaxed conditions of release is "spreading like wildfire" on the streets, leading her clients to believe they are "just getting a slap on the wrist."

Nicholas Wachinski, speaking on behalf of Lexington National, which underwrites Fred Frank Bail Bonds in Baltimore, among others, told the tale of a defendant released with an ankle bracelet who subsequently missed a court date and killed someone. It's uncertain whether a release on bail bond would have prevented a similar incident. Though bondsmen often argue that they keep tabs on their clients as they await trial, there aren't reliable numbers to quantify this.

But as ever, the devil is in the details. In rejecting the rule change in its current form, Court of Appeals judges pointed out a number of issues that remained unclear: If a person's ability to pay must be considered, how will that be defined? Does the state have the resources pick up the slack if it becomes less reliant on the bail bond industry to make sure defendants show up in court? Does Maryland have the capacity to monitor more defendants released on their own recognizance? Does it have the capacity to deal with more kept behind bars, refused bail? If cash bail is a last resort, does the state have the resources to monitor other conditions of release?

Addressing the hearing audience, Judge Sally D. Adkins wondered, "Who's going to know if people are violating their no-contact orders?"

Many of these finer points would be up to the legislature to decide, but the judges' questions illuminate the symbiotic relationship between the courts and the cash bail industry, which is facing its own set of challenges.

Just before Christmas, bail agents met with their regulator, the Maryland Insurance Administration (MIA), in a heated discussion about the state of the industry.

"I'm hearing about a 50 percent decrease in business since October," one bondsman announced to a group of nodding cohorts, "because of what's happening with Mr. Frosh."

Some attendees wondered aloud what could be done to stop the rule change and urged to push the issue in the legislature which, given the industry's lobbying efforts, might work more in their favor. Bondsmen also aired concerns about how to get a handle on unscrupulous bondsmen who steal business and shirk regulations by illegally discounting bonds. Bondsmen are required to charge a full 10 percent of the bail amount, but some offer "deals" of lesser amounts in order to undercut the competition—it's one thing that rule-abiding bondsmen and bail reformers agree is a problem.

Leading the meeting, the MIA's Victoria August referred to this as a "very competitive industry" where "sometimes people are reluctant to report bad behavior."

Regulators recognize this problem, but enforcing it can be a stubborn challenge. John Selway, the MIA's assistant chief enforcement officer, monitors an anonymous tip line for bad practices in the insurance industry. He reckons it gets around 10 bail-related complaints a month, but that is not a reliable measure—the bulk of complaints would need to come from a group unlikely to speak out: clients getting too good a deal. The onus is on bondsmen and consumers to report wrongdoing. If a defendant is getting a cut-rate bond, they're unlikely to report it, says Selway, and if one bondsman reports another for discounting bail bonds, it's easy enough for them to deny it. As Victoria August put it, to act on such wrongdoing, you need a "warm body" to testify.

But buying a discounted bail bond can come back to haunt you. Selway regularly sees cases where a client is sold a bail bond on the verbal promise of a discounted rate, but is then brought to court for not paying enough. The result: "People who thought they were getting a good deal are now getting a court judgment against them for the full amount," he says.

Regulations challenges have a knock-on effect on defendants and their families, who use the services—particularly those who aren't law-savvy. The industry's multi-faceted marketing can make it overwhelming for defendants to navigate and make the right choice. There are brick-and-mortar shop fronts, online services, and what Selway calls people who "hawk" bail—unlicensed individuals who scan court records and contact arrestees directly to offer them bail services, which they pass onto a licensed bondsman for a fee. "The court" explains Selway, "has no way of knowing whether an unlicensed bondsman was involved in the transaction at any point."

In the worst cases, unlicensed bondsmen take down payments for bail bonds they never intend to post, and then disappear. The Maryland Insurance Administration filed suit in 2015 to shut down the website of Lovrico Johnson Sr., who had his license revoked in 2012 after it was discovered he had lied about criminal convictions on his license application, a violation of state law, and after numerous complaints from clients who had paid Johnson thousands in down payments for bonds he never posted. His company, Hard Knocks Bail Bonds, continued soliciting business from customers well after his license was revoked. "He's wanted in several jurisdictions," says Selway.

Selway says the vast majority of bondsmen comply with the rules, but these outliers are among their biggest concerns.

Bail reform measures like the ones proposed in Maryland have ramped up across the country, signaling that the needle is tilting away from the cash bail system. But the road to reform is a long one. Holder told the Court of Appeals last week: "Every year in this country, thousands of persons are kept in jail for weeks and even months following arrest. They are not yet proven guilty. They may be no more likely to flee than you or I. But, nonetheless, most of them must stay in jail because, to be blunt, they cannot afford to pay for their freedom." He was quoting Robert Kennedy, 52 years ago.

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