What if bail reform leads to higher incarceration?

A campaign to get rid of the bail bond industry is currently in full swing across the country, with support from many liberals and libertarians. I’ve got an op-ed in the weekend Wall Street Journal’s “Cross Country” feature warning that Maryland’s experience over the past year should be a cautionary lesson:

Last fall the state’s attorney general, Brian Frosh, issued guidance that suddenly declared past bail methods unlawful, prodding the court system into an unplanned experiment. Judges may not set financial requirements if there is a reason to believe the defendant cannot pay, and unless they hold a suspect without bail, they must impose the “least onerous” conditions.

Now the results are coming in, and they can’t be what Mr. Frosh had in mind. An early report in March by Kelsi Loos in the Frederick News-Post found that since October the share of Maryland defendants held without bail had increased from 10% to 14%. The Washington Post later reported that from September 2016 to May the figure had jumped from 7% to 15%.

Meanwhile, fewer released defendants are showing up for trial. The Post, confirming anecdotal reports, writes that the “failure to appear” rate in January was 14.5%, up five points from October. Failing to show up for court sets up a defendant for more-severe consequences down the road, which can include being held without bail.

While bail reform is supposed to reduce the number of inmates held in jail, the number has instead increased in some places, though the results appear inconsistent.

If bail is taken away, judges need other tools to do the same job. Decades ago, when Congress steered the federal criminal-justice system away from bail bonds, lawmakers provided practical replacements, including systematic help in assessing a defendant’s risk of flight or re-offense, options for pretrial supervision, and methods of home and electronic detention. Several states have done the same. New Jersey now uses a mathematical algorithm to assess a person’s risk of fleeing or committing another crime. But the Maryland legislature, deeply split over Mr. Frosh’s destabilizing changes, has failed to set up such alternatives.

Maryland’s example doesn’t refute the idea of bail reform. But it does suggest state leaders should work to build consensus for comprehensive changes, instead of charging ahead with moralizing experiments.

On the current campaign to end bail bonds, see American Bar AssociationSens. Kamala Harris and Rand Paul and newspaperspraisingMarc Levin (conservative), ACLU (villainizing insurers), Gary Raney.

Other perspectives: Scott Greenfield (“pre-trial incarceration was a huge factor in obtaining guilty pleas from innocent defendants,” but algorithms, used as replacement in places like New Jersey, have problems too), Joshua Page (some families value bond company’s service), Dan Mitchell. On the uncertain stance of constitutional law, see Pugh v. Rainwater (Fifth Circuit 1977) and more (LaFave et al.), Walker v. City of Calhoun, 2016 (Cato amicus: bail must be individualized) and more (James McGehee).

[cross-posted from Overlawyered]

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Hamilton v. Paolozzi: gun rights of rehabilitated felons

Restore rights to a rehabilitated felon? Sure, says Maryland, but not gun rights. Constitutional check [Ilya Shapiro, Cato, on this certiorari amicus brief]

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Moving the Roger Taney statue

My new op-ed at the Frederick News-Post on Gov. Larry Hogan’s decision to support removal of the statue of Roger Taney from its place in front of the Maryland State House:

Taney did many things in an illustrious legal career but is remembered for only one: the disastrous Dred Scott decision, which served to entrench slavery….

Change in the display of public memorials is natural and inevitable….

No one has erased him from the history books — the Dred Scott case itself makes sure of that.

Plus: some thoughts from Andrew Stuttaford. From Atlas Obscura, displaced statues as a subject of historic preservation. Related: “My favorite Civil War era monuments are the 13th, 14th, and 15th Amendments.” [@david_tanenhaus on Twitter]

[cross-posted from Overlawyered] And from Chuck Lane at the Washington Post: how about a replacement statue honoring Maryland jurist Hugh Lennox Bond?

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Judge zaps MoCo lawn pesticide ban

Overturning Montgomery County’s ban on many commonly used lawn pesticides [Washington Post], Montgomery Circuit Court Judge Terrence McGann

said that the law — the first of its kind for a major locality in the region — would conflict with federal and Maryland state regulations that allow the use of the pesticides. The case was just one example of Maryland counties’ “insatiable appetite to tamper with existing state laws,” McGann said.

Counties have also “tried to hijack a portion of the existing field of law” in areas including tobacco, guns and minimum wage, he said.

My Cato Institute piece on the county’s bald double standard — officials had sought to exempt playing fields and other county properties from the ban — is here.

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Gerrymeander Meander II

I was glad to join Lt. Gov. Boyd Rutherford, the League of Women Voters of Maryland, Common Cause of Maryland, and other groups for the Gerrymander Meander II in Baltimore July 16, which hopped from district to district visiting four eateries in Baltimore and its northern suburbs, each in a different district. I was among the speakers at the kickoff rally in Towson. For coverage, see Len Lazarick/Maryland Reporter, as well as the Baltimore Sun and national Common Cause.

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In miniature, July 2

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Supreme Court tackles redistricting again — the Maryland implications

The U.S. Supreme Court has now agreed to hear a much-watched Wisconsin case, Gill v. Whitford, inviting it to reconsider its position that the Constitution does not create a judicial remedy for partisan gerrymandering. Should the Court uphold the challenge to Wisconsin districts, the implications for Maryland would be immediate and dramatic, since Maryland’s gerrymander is more extreme than Wisconsin’s and there is good evidence on the record (thanks in part to recent depositions from top officials) that its motivations were political. I joined Bryan Nehmen on WBAL yesterday to discuss how this affects the Maryland debate.

I also wrote a piece for Cato on the national implications, cautioning that the euphoria in some circles about an impending change in the Supreme Court’s jurisprudence is at best premature. The Justices by a 5-4 margin stayed the lower court order from Wisconsin, which hints, at least, that Justice Anthony Kennedy might not be persuaded by the advocates hoping to get him to open wide the door he left open in his 2004 concurrence in Vieth v. Jubelirer.

A couple of additional relevant Maryland links from before the decision: Nancy Soreng and Jennifer Bevan-Dangel in the Washington Post (“Maryland shouldn’t wait for other states to start redistricting”); Karen Hobert Flynn, The Hill;
Kojo Nnamdi show last month with Ashley Oleson (MRRC colleague, but no relation) and Del. Kirill Reznik (D-Montgomery County); Yael Grauer/Yes! (“Has Arizona Found a Solution to Gerrymandering?”, discussing Maryland reform efforts).

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Putting occupational licensing on the Maryland reform agenda

Last year the Washington Post rightly applauded Maryland Gov. Larry Hogan’s signing of a bill reducing licensing requirements for personnel at “blowout” hair salons as “a modest but genuine step toward reform of occupational licensing rules that too often stand in the way of career progress for working Americans, and not only in Maryland.” The Obama White House, think tanks, and many economists agree that needless licensing rules exclude qualified newcomers from desirable jobs and often harm consumers as well by restricting choice and driving up the cost of services. (More here.)

Where should Maryland reformers turn next? In 2012 the Institute for Justice published a nationwide comparison that ranked Maryland as 14th most burdensome of the fifty-states-plus-DC in its licensing rules. Of the 42 occupations Maryland requires a license to practice, 16 require such a license in 10 or fewer other states, suggesting that much of the country gets along quite well without such rules. They include tree trimmer (only 6 other states choose to license), social and human service assistant, and a variety of residential construction trades including window repair, floor sanding, and carpentry. These jobs can offer a livelihood and a path for upward advancement for a wide range of workers, including some who lack degrees or are re-entering the workforce after absence, who lack the resources or patience to surmount the licensing barrier.

Equally problematic, even when other states license a given occupation, Maryland often loads onto the entrant heavier education and experience requirements. It ranks 10th of 51 in that category of burden, typically requiring more than a year of preparation before conferring a right to practice. While 39 states require a license before practicing massage therapy, for example, Maryland demands nearly a year of preparation, almost three times as long as neighboring Virginia, Delaware, or Pennsylvania.

It’s a target-rich environment — although many of the burdensome rules, alas, will be closely defended by incumbent practitioners who do not like the idea of easier access to their occupations.

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Redistricting: the six-state compact idea doesn’t cut it

On Tuesday the Baltimore Sun ran any op-ed that I co-authored with Judge Alexander Williams, Jr., with whom I serve as co-chairs of the Maryland Redistricting Reform Commission:

By an overwhelming majority, Marylanders support the idea of having an independent commission rather than incumbent lawmakers draw district lines for Maryland elections. The margin was 73 to 19 percent in a February Goucher Poll, with support running roughly the same among registered Democrats, Republicans and independents.

Yet a bill passed by the legislature this session would instead have kicked the issue of redistricting reform down the road unless five other nearby states all agree to pass similar bills — something no one expects to happen.

As co-chairs of the Maryland Redistricting Reform Commission, which Gov. Larry Hogan established in 2015 to devise a better system for drawing district lines, we support Governor Hogan’s May 8 veto of that bill. The proposal for a “Mid-Atlantic Regional Compact” is a frivolous distraction in place of a willingness to tackle reform seriously….

Read the full piece here.

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On the Howard County Unsweetened campaign

According to coverage at places like NPR and CNN, an innovative campaign in Howard County, Maryland “provides a road map for other communities to reduce consumption of sugary drinks.” Not so fast, I argue in my new Washington Examiner piece: the suburban county in question is not remotely typical of America as a whole, the Howard County Unsweetened campaign blurred public and private boundaries in a dubious way, and the whole enterprise generated a deserved political pushback. While the plan, promoted by the local Horizon Foundation, might not have been all bad, “it sowed divisiveness, put government resources to improper purpose, and rested on a premise of frank paternalism. When it arrives in your community, you might want to respond as you might to a second pitcher of cola — by pushing it away with a polite, ‘no thanks.’” [cross-posted from Overlawyered]

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