Opinion: Leveling the Unequal Pretrial System for the Poor

Pretrial
Bill Oxford/unsplash.com.

No one awaiting trial, presumed innocent, should be incarcerated based on their financial circumstances. Period.

Maryland’s piecemeal pretrial home detention system, in actuality, is no system at all — yet it manages to keep individuals who cannot afford home detention in jail before being convicted of any crime.

Many counties throughout Maryland depend on private companies to provide GPS monitoring services for pretrial defendants ordered by judges to be released with such restrictions. These services cost money. Some counties provide home detention services but charge fees.

Simply put, if you can’t afford the fees, especially in the jurisdictions using private companies, you cannot be released on home detention. Worse, if you’re released, and struggle to make home detention payments, you can be rearrested. HB 316/SB 23 provides funding for indigent people’s home detention fees — a welcome solution, even if temporary, to a basic issue of equality.

In 2017, the Maryland Court of Appeals promulgated landmark bail reform through the framework of its rules of court. The rules carry the weight of laws in Maryland. Essentially, the rules now disfavor the use of cash bail and guide judges toward using the “least onerous” conditions of release during bail hearings.

Rule 4-216.1 reads “preference should be given to additional conditions without financial terms.” The net effect has been the overall decline in the use of cash bail as a condition of release. Consequently, the Office of Public Defender finds fewer individuals stuck in jail pretrial with unattainable bails (along with a large increase of people held without bail). To be clear though, bail is still legal in Maryland; it’s just used less frequently.

Along with bail, pretrial supervision, stay away orders, curfews and personal recognizance comes the possibility of release on home detention. Dorchester, Somerset, Wicomico, Worcester, Kent, Charles, Harford and Howard counties along with Baltimore City allow pretrial home detention but require fees.

This means that a judge can order someone released either on private or public home monitoring (depending on the place), but a defendant would have to pay for it. Neither the companies nor the public option will permit the individual to be placed on home monitoring without the ability to pay, and if payments cease, the individual is subject to re-arrest.

The OPD views this as a bail system in disguise. Essentially, if you are ordered to be released and you can afford it, you can get out. However, if you cannot, you stay in jail. Not only does this contradict the spirit of the rules of court and the statewide and national movements against cash bail systems and their predatory effects, it is unconstitutional.

HB316/SB23 offers a stopgap fix to the immediate problem in several respects.

First, it would provide quick relief (when enacted, which is still months away) by offering funding to indigent individuals to pay either private home detention fees or require local jurisdictions to waive or cover fees for public home monitoring programs. This is huge.

Make no mistake about it, home detention is still incarceration. Individuals are not permitted to leave their assigned residences except for pre-approved allowances like work, doctor appointments or court-related activities. Every exception is programmed into a GPS device. Any violation is reported to the court. Many people on home detention are on “24/7 lockdown” with no exceptions.

However, home detention is still preferable to being in jail. One can still have some semblance of a regular existence while on home detention. In these times, home detention can mean the difference between life and death as COVID-19 makes its way through our jails and prisons. Being at home allows one to properly sanitize, mask and socially distance.

We have also seen unprecedented delays in trials across the state, which could stretch out to nearly two years in older cases once courts fully open again. So, HB316/SB23 should first and foremost be regarded as a humane response to the pandemic.

HB316/SB23 is also an extremely important step for the legislature to take toward reworking the uneven pretrial system throughout the state.

It’s arguable that people arrested in jurisdictions like Kent County or Baltimore City (without free home detention) are subjected to equal protection violations in that they don’t have the same options of release as an individual arrested in a place like Montgomery, St Mary’s, Anne Arundel or Prince George’s counties where home detention is local – and, most importantly, free. Providing funding (already allocated for pretrial use) begins to level the playing field between fee based and free jurisdictions. It is also of great significance that OPD clients across the state that struggle with home detention costs tend to be people of color. Neither your place of arrest, financial wherewithal, nor race should determine whether you will be held in jail.

To be clear, the concept of home detention is merely an extension of the “jail version” of pretrial incarceration. Ultimately, establishing more robust pretrial services monitoring programs with greater community-based services around the state is a better solution to having fewer people behind bars before trial.

If we were serious about bail reform, then this is the logical follow up. However, in these tough economic times with a deadly virus lingering, our clients need this bill and they need it sooner than a potential summer enactment date.

So, it only makes sense to pay for home detention for those who have been granted it but cannot afford it. We need to pass HB316/SB23 right away.

— TODD OPPENHEIM

The writer is a supervising attorney in the Baltimore City Felony Trial Division of the Maryland Office of the Public Defender. He can be found on Twitter @Opp4Justice.