Category Archives: Law

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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George Liebmann on the Baltimore police consent decree

George Liebmann of the Calvert Institute, who has been a critic of the U.S. Department of Justice’s consent decree with the city of Baltimore over policing practices, commented on the decree in a communication to the district court. What follows are excerpts from the submission to the court:

To: Baltimore.consent.decree@USdoj.gov

…The showing of current or recent constitutional violations by the named defendants that is a necessary predicate for federal jurisdiction and the decree is absent. The unsworn and unsigned Report attached to the Complaint recites few recent incidents, none chargeable to the current Mayor and Police Chief, and no improper directives by them. …

This is a City in which any number of Mayors, Councilmen and Police Chiefs have been black, as is at least 40% of its police force. Whatever the misconduct of a few individuals, the charge of racism is one that should not be lightly entertained, let alone sanctified, on slender or non-existent evidence, in a decree of a United States District Court. Such a finding is a jurisdictional prerequisite; the disclaimer in paragraph 5 that the City does not agree with the Findings in no way obviates the jurisdictional need for them. Their falsity and exaggeration is welcomed by the original sponsors of the decree because it feeds not only into a decree but into a political narrative supportive of electoral mobilization and identity politics.

The decree is transparently collusive—an alliance of two lame duck administrations to victimize unrepresented interests, those of the police unions and their members and those of the State, which will be pressured to provide money for reforms, the BPD being at least nominally a State agency. Nor is the United States Attorney anywhere to be found…. Article III of the Constitution limits court jurisdiction to “cases and controversies”, an important limitation. Moore v. Charlotte-Mecklenburg, 402 U. S. 47 (1971); Chicago and G.T.R. Co. v. Wellman, 143 U. S. 339(1892). There is none here; the parties have avowed since before this case filed their intention to enter a consent decree. Given the apparent lack of enthusiasm of the current Justice Department, entry of the decree will deliver public policy into the hands of advocacy groups. It is inconceivable that even the recent and current City administrations would have conceded control of the police to advocacy groups, including some with a declared agenda in favor of federal control of local law enforcement.

The vague and sweeping injunction contained in paragraph 8 can thus be enforced, if at all, only by contempt fines falling on City taxpayers and fustian from the bench. The Court, to be sure, will have the aid of a credulous press. Notwithstanding an express finding in the Report that the facts found on handling of sexual assault complaints did not establish a constitutional violation, the lead story by Sheryl Gay Stolberg and Jess Bidgood in the next day’s New York Times, August 16, 2016, page 1, column six at the top of the page bore the headline in the print edition: ”Baltimore Police Fostered a Bias Against Women.” The Court in its Agenda for Counsel accurately characterized the decree as “aspirational, general, lacking in deadlines” as well as lacking in information about “standards to be applied, resources, costs.”

Neither this Court nor the litigating lawyers framing the decree are authorities in police administration. As the ‘time line’ appropriately directed by the Court indicates, there are an almost comically large number of reporting requirements, the costs of which in time, manpower, morale, and response speed are not assessed. There is every reason to think that these external mandates will be resented and little in the recent history of structural decrees provides reason to think that they will be effective. Non-constructive compliance costs will be enormous, and, given paragraph 450, even the much-vaunted ceiling on monitors’ fees is bendable.

The City was vindicated in this court’s housing case after twenty years of costly litigation, the only relief granted being a cosmetic decree against the federal government affecting a few hundred families; while the case was pending, several hundred thousand minority families moved to the Baltimore suburbs without the court’s assistance. This court’s special education case was of equal length and bore fruit, as Kalman Hettleman and others have shown, in enhanced paper shuffling and no improvements in the quality of the personnel giving classroom instruction. …The effective police reformers have been Commissioners, not judges: William Bratton in 1990s New York and Los Angeles, Donald Pomerleau in 1970s Baltimore.

Paragraphs 251 through 259 of the decree relating to sexual assault are improperly included as a sop to advocacy groups in the face of a Report finding “We do not, at this time, find reasonable cause to believe that BPD engages in gender-biased policy in violation of federal law.”

The provisions of paragraphs 43(b) and 61 limiting arrests for loitering, misdemeanor trespass, (important in drug law enforcement), as well as disorderly conduct, gambling, and quality of life offenses will become rapidly known and are gifts to the underworld, lowering the risks and costs of illegal drug distribution and increasing its profitability. In no way do they foster or are they equivalent to the decriminalization of drugs. The benefits of decriminalization, all absent here, include labeling, licensing, quality control, availability of drug testing without fear of self-incrimination, excise taxes, enhanced revenues from sales, payroll, income and business taxes, and the replacement of a distribution system reaching into every workplace and classroom with one operating from fixed locations. Insofar as it curbs “broken windows” and “quality of life” enforcement, the decree completely deprives the City of options the value of which is the subject of political and professional controversy, a disservice to responsible self-government.

The decree cedes power not only to the federal court and its monitor but to the federal Department of Justice itself, see paragraphs 285, 286, 298, 319, 324, 483. The merit of Justice Jackson’s view may not have been apparent in October but should be in March: “I think the potentialities of a federal centralized police system for ultimate subversion of our form of government are very great.” The decree adopts unacceptable “disparate impact” criteria on both employment and enforcement, paragraphs 43, 423 and 511 (cc). It is particularly deplorable that the last of these restrictions is buried in the “Definitions” section of the decree. Its effect, as a representative of an advocacy group has joyfully proclaimed, is to prevent police from “targeting citizens in high crime areas.” Reduced enforcement in such areas is assumed to be a public good, an insight probably not shared by the residents. …The decree is not a harmless sop, but a measure whose effect on police recruitment and behavior threatens a sudden and complete collapse of public order, or at best a long period of slow attrition as police, residents and businesses vote with their feet for jurisdictions that have not thus handcuffed themselves….

The court is being urged to enter both a political thicket and a minefield, to no good purpose….

Respectfully submitted, George W. Liebmann

Note also (via Kevin Rector of the Baltimore Sun on Twitter) this paragraph acknowledging the collusive, or sweetheart, nature of the litigation:

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Image: Wikimedia.

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South Mountain Creamery owner will get the rest of his money back

Good news in the Randy Sowers case, written about often in this space. [Institute for Justice, Edward Ericson, Jr./Baltimore City Paper, Jacob Sullum, earlier, more on forfeiture] [cross-posted from Overlawyered;

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Gov. Hogan signs forfeiture reform

Gov. Larry Hogan yesterday signed an important package of reforms to forfeiture law in Maryland. Applause to all who helped make this happen, including Sen. Michael Hough, Rob Peccola and Lee McGrath of the Institute for Justice, and Gov. Hogan.

P.S. Some coverage of a January press event in which I participated at the Capitol, calling attention to the case for asset forfeiture reform in Maryland: Frederick News-Post, Maryland ReporterWBAL.

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LEOBR reform not going well this session

Supposed reforms to Maryland’s notorious Law Enforcement Officers Bill of Rights (LEOBR) law could leave police unions with even more power than now [Washington Times, Washington Post] ACLU of Maryland report on how the law, along with the Baltimore police union contract, serve as obstacles to officer accountability [press, more] Last year, the filing of charges in the Freddie Gray case “enraged the police rank and file, who pulled back” from arrests and engagement with lethal consequences for the Baltimore crime rate; but was the work-to-rule really based on a well-founded fear of being prosecuted over good police practice? [Richard Oppel/New York Times, NYT “Room for Debate” and more, Alex Tabarrok/Marginal Revolution]

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Should Maryland give felons on probation and parole a right to vote?

The Maryland legislature will soon decide, perhaps by a margin of a single vote, whether to override Gov. Larry Hogan’s veto and extend voting rights to some classes of felons on parole or probation. A few thoughts:

  • The proposed change would replace a reasonably bright-line, understandable rule on felons and voting (finish your sentence first) with a mishmash new standard that would spread confusion among voters and elections boards and is based on no coherent rationale. Clear rules of predictable and understandable application are desirable for their own sake and especially important in voting, an area in which confusion and disagreement about legality bring special dangers. That’s one reason the editorial advisory board of the Daily Record, the newspaper of the Maryland legal profession, says Gov. Hogan’s veto should stand and that there are other, better ways to pursue the goal of reintegration for offenders.
  • Proponents offer what they claim is evidence that restoring a right to vote earlier promotes rehabilitation of offenders. It is very difficult to separate correlation from causation on this, however. Yes, well-rehabilitated offenders are more likely to vote, but that does not mean that the second caused the first.
  • Proponents also argue that earlier recovery of voting privileges is needed to combat stigma. A couple of thoughts on that: First, all criminalization necessarily stigmatizes unless the public stops believing that criminality ordinarily relates to guilt, in which case we are in very big trouble for other reasons. Second, parole/probation involves continued deprivation of a comprehensive bundle of civil rights, many of which would otherwise be of constitutional standing, such as travel, association, firearms access, and so forth. Of these, I suspect losses in areas like travel and association are far more stigmatizing than loss of a voting right because they often must be explained to others (“sorry, I can’t come to your wedding because…”). With voting, we have a secret ballot and a system set up so as generally to protect people from “You didn’t vote last week and I need to know why” social pressure.

Both sides bring ideological preconceptions to this dispute. But of all the ways in which one might address Maryland’s genuine problems of over-criminalization and over-incarceration, it seems especially a token of ideological faith to have settled on this one as a key priority.

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Correcting the record: Question 6 and religious liberty protections

At Red Maryland (page archive), Brian Griffiths writes the following:

Something that should have been obvious from the get go but 2012’s Question 6, which was supported by Maryland Democrats and current Republican Senate candidate Chrys Kefalas, contained not a single provision protecting the religious liberties of any Marylanders.

To begin with a parenthetical issue, invoking Chrys Kefalas seems a little gratuitous, since Question 6 was supported not only by a majority of Maryland voters but by a number of elected Republicans like now-Howard County executive Allan Kittleman (and opposed by some elected Democrats). What is not gratuitous, but simply wrong, is Griffiths’ assertion about the bill’s contents, even as he links its synopsis, which even at a glance shows the contrary:

Altering a provision of law to establish that only a marriage between two individuals who are not otherwise prohibited from marrying is valid in the State; prohibiting an official of a religious order or body authorized to perform a marriage ceremony from being required to solemnize or officiate at a marriage or religious rite of a marriage in violation of the constitutional right to free exercise of religion; making the Act contingent on the resolution of litigation under specified circumstances; etc.

Emphasis added. And that was only one of a series of religious- and conscience-protecting provisions in Sections II, III, and IV. The bill’s full text, linked from the history/synopsis page, summarizes these additional provisions in its prefatory description of purposes:

…establishing that certain religious entities have exclusive control over their own theological doctrine, policy teachings, or beliefs regarding who may marry within that faith; prohibiting certain officials from being subject to any fine or penalty for failing or refusing to join individuals in marriage; prohibiting certain religious entities from being required to provide services, accommodations, advantages, facilities, goods, or privileges to an individual under certain circumstances; providing that a certain refusal by a certain religious entity or an individual employed by a certain religious entity may not create a civil claim or cause of action or result in any State action to penalize, withhold benefits from, or discriminate against such entities or individuals; prohibiting certain fraternal benefit societies from being required to admit an individual as a member or provide insurance benefits to an individual under certain circumstances; providing that a certain refusal by a certain fraternal benefit society may not create a civil claim or cause of action or constitute the basis for the withholding of governmental benefits or services from the fraternal benefit society; …

Hat tip for noticing this error to David Lublin at Seventh State. Lublin’s point of view on some of the other issues involved differs from my own, but I agree on one point: Red Maryland owes Kefalas in particular an apology. And while we’re at it, after this and the recent episode involving CD-6 candidate Amie Hoeber, would anyone regard Red Maryland as a suitably impartial sponsor for a debate between Kefalas and other Republican Senate candidates?

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Who Maryland law protects — and who it doesn’t

“Internal records related to a police officer’s misconduct cannot be disclosed to the public and are exempt from the Maryland Public Information Act, the Court of Appeals ruled Thursday.” The ruling applies whether or not charges of misconduct are found to be true: the court found the law “does not differentiate between ‘sustained’ and ‘unsustained’ complaints” [Mark Puente, Baltimore Sun]

The law is there to protect misbehaving public employees. Don’t you wish it were there to protect you?

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The Ehrlich record on clemencies

For handy reference, here’s a Washington Post 2012 write-up and a short post at Pardon Power. From the latter:

[Bob] Ehrlich, who became Maryland’s first Republican governor in 36 years when he was elected in 2002, made clemency requests a priority of his administration from 2003 to 2007. Ehrlich assigned five lawyers in his office to consider clemency cases, with two of them fully devoted to them. He met with them once a month to consider cases.

In his four-year term “Ehrlich granted 227 pardons and 21 commutations.” This was a much faster pace than Democratic predecessor Parris Glendening, and even more so than successor Martin O’Malley, who after six and a half years in office had 105 pardons and three commutations.

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