Monday, December 13, 2010

The End of Bail, and a New Beginning

Our bail system is disconnected to its purpose. It neither ensures that persons accused of crimes show up in court nor protects the public from further criminal activity. It exists because, well, that's the way we've always done it. And by making liberty dependent upon financial resources, it discriminates against the poor.

So what do we do? Circuit Judge Brooke Murdoch, chair of Baltimore's Criminal Justice Coordinating Council, has convened a committee to look at the city's bail system. I don't know what its marching orders are, but I expect little to come from it. Committees that lack the power to actually do anything usually just tinker with the status quo. They don't foster radical rethinking.

I did hear that the bail committee won't be seeking new legislation, a wise decision. The profitable bail bond industry exercises a formidable influence on our elected politicians. According to one witness, Joe Vallario, Chair of the House Judiciary Committee actually apologized to bondsmen for wasting their time at a hearing on bill to close a licensing loophole. Vallario had no intention of letting even modest reform come to a vote.

Fortunately, we don't need politicians to fix the pre-trial release system. Change can be driven from within. And it needn't burden taxpayers the way that bail reform advocates like Doug Colbert of the University of Maryland law school would have it. Colbert thinks the public should (a)pay for defense attorneys to tell the commissioners to set lower bails, and (b)pay for prosecutors to tell commissioners to set lower bails. That's three people to do the job of one person already paid to set bails.

Commissioners work for the District judges. The judges train the commissioners in setting bail, and they set bail themselves. It's their job, and they should do it. But what is it that they should do?

First, end the pretense that the bail system does anything other than enrich bail bondsmen. No more bails.

Second, change the decision from how much bail should be set to can the accused be released pending trial. In the majority of cases the answer should be yes, though it can't reflect a simplistic criteria, such as whether the alleged crime is violent or not. A person may commit a non-violent act but pose a serious danger. A person may be accused of a violent act but can still be released.

Those we are now willing to release on reasonable bails would (for the most part) continue to be released, only without having to post a financial bail. The risk to public safety remains the same. Likewise, the population of those who get "no bail" would mostly stay the same as well.

The real issue for commissioners and judges would be those persons who now get high bails or who should otherwise be perceived as high risk. And therein lies the opportunity for a new beginning. For the same considerations that go into pre-trial release decisions would go into prosecution, sentencing, probation violations and parole. By articulating who we need to focus upon we could have a rational, explainable, justifiable criminal justice system from top to bottom, not one that exists because, well, we just do it this way.

I can think of a million issues that would need addressing. If a released person fails to appear in court or is re-arrested, he should be held no bail the second time. Accused persons are now frequently released multiple times, which rightfully frustrates citizens. One bite at the apple would be fair to rich, poor, and the public.

A new pre-trial release system should bring with it an arraignment court in the District Court to reduce the number of unnecessary appearances by victims and witnesses. Citizens should not be able to obtain warrants against other citizens like they do now without prosecutor review. The State's Attorney's central booking division, reduced to a skeleton crew under Jessamy, must restock and refocus. Alternatives to pre-trial detention like curfews, reporting requirements, home monitoring, and stay away orders need shared information, better technology and police involvement to make them effective, not the joke they are now. Simplified fingerprinting should be available to police on the street to allow citations rather than arrests. And there is so much more.

These terms and concepts will mean more to criminal justice professionals than they do to the public. My point is that there's much work to do and many details to consider and address. We should not plunge into a new system, and we should measure what we are doing along the way, something the criminal justice system does so poorly now.

But it can be done. What it needs is visionary, energetic and sustained leadership. Leadership that thoroughly understands the current system and doesn't think it can just impose a 'good idea' (a la one former Mayor Martin O'Malley, who knew just enough to make him arrogantly confident in his ideas but little enough that they failed.)

That leadership must come from the the State's Attorney's Office, the agency that decides who to prosecute. It must take the lead in focusing criminal justice efforts on those who most pose a threat to public safety. That decision starts with pre-trial release and detention, and continues on throughout the entire criminal justice system.

In a few weeks, Baltimore will have a new state's attorney, Gregg Bernstein, who has promised change. There's so much he can do. He's our chance for a new beginning.