Tag Archives: criminal justice

“Bail reform falling short of goals”

A Capital News Service series published at Maryland Matters confirms that in Maryland, at least, bail reform has had trouble meeting its intended goals. In particular, while the number held for inability to meet bail has dropped sharply since the adoption of reforms in February 2017, Baltimore in particular has seen an offsetting jump in the rate at which judges hold defendants without making bail available. Statewide, “the number of people held with bail decreased from 29.8 percent to 18.4 percent over the past 18 months, while the number of people held without bail has increased from 13.6 percent to 22.6 percent.” [Alicia Cherem and Carly Taylor with sidebar by Kaitlyn Hopkins and James Crabtree-Hannigan] I reported on the same trend in 2017 and again last year.

A second entry in the series examines the adoption of pretrial risk assessment algorithms which can make up for some of the lost functions of cash bail, a county-by-county process still under way across the state [Angela Roberts and Nora Eckert] A third looks at the “trial penalty”: numbers show that “defendants who reject plea bargains and are convicted when they choose to go to trial for many types of crimes face longer sentences – sometimes substantially longer – than defendants who make a deal.” [Shruti Bhatt, Angela Roberts and Nora Eckert]

It’s worth remembering that state ventures in bail reform can lead to quite different outcomes depending on the strategy tried. New Jersey, which has won praise for its careful development of pretrial services, “is approaching two years operating a bail system where people don’t have to pay money to be free from jail. The crime wave some warned about hasn’t happened.” [Scott Shackford, ReasonMarc Levin, Real Clear Policy] [cross-posted from Overlawyered]

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Talking Baltimore crime on the Jerry Rogers show

I joined host Jerry Rogers on WBAL to discuss Baltimore’s dreadful crime statistics, in particular the plunge in clearance of homicide cases discussed in this report (with more here).

For more on the grim report of rising crime on the Johns Hopkins campus, see the university’s eye-opening interim report, or this piece by William F. Zorzi for Maryland Matters.

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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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In miniature, August 8

  • MoCo Executive Leggett stifles a plan to make county dealings with labor unions more transparent [Bill Turque, Washington Post]
  • “Shank: Criminal justice overhaul will lead to better outcomes in Maryland” [Herald-Mail]
  • “Why in the world would the P.G. police dept. choose this particular cop to host a ride-along with a reporter?” [Radley Balko]
  • Baltimore’s regulatory blockade: lawsuit challenges grip of historic preservation laws [Nick Zaiac, Market Urbanism]
  • Been there. “Replacing Maryland E-ZPass transponder is not so easy” [Len Lazarick]
  • It’s something [that] shouldn’t be done by either party in any state.” Larry Hogan talks gerrymandering [Danielle Gaines, Frederick News-Post]

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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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“Efforts to label the riots an ‘uprising’…”

“…will strike the same voters as hopelessly out of touch (read: insane).” [David Lublin, The Seventh State (“Democrats Must Address Baltimore or Drown Politically in the Undertow”)]

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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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