A handful of states have eliminated the traditional money bail system, hoping to reduce their inmate population and avoid harming low-income defendants. But one recent study claims bail reform not only don’t always work, but can actually prove counter-productive to its professed goals.

In 2016, five Maryland state legislators, all opposed to the current bail system, which sets pre-trial bail at levels many defendants cannot afford to pay, asked state Attorney General Brian Frosh to provide an opinion on its constitutionality.

Himself a proponent of bail system reform and a former state senator, in an October 2016 opinion letter Frosh opined the money bail system might be an unconstitutional violation of equal protection and due process rights, since it doesn’t take into account what amount persons accused of crimes can afford to pay, thereby forcing a jail stay for those unable to afford the bail set in a pre-trial hearing.

While the legislators planned to offer bills changing the state’s system, Frosh suggested the issue be referred to a group of state judges already working to revise the state bail system. Early the next year, Maryland’s top state court issued new rules for judges to use in setting bail, effective July 1. Under the new rules, judges were directed to set the “least onerous” conditions in setting bail for defendants who aren’t deemed either dangerous or a flight risk. Judges were also required to consider if defendants can afford bail.

At the time, Attorney General Frosh hailed the changes as a “huge step forward,” and predicted they would bring “more justice in Maryland.” The message the new rules sent to judges, he added, was to “keep dangerous people” locked up, and to let “the vast majority who are not a threat” get released until trial. Thus, poor defendants would not be kept in jail before trial simply because they could not make bail.

But a report issued in June by two advocacy groups, Color of Change and Progressive Maryland, finds the bail system reforms Maryland adopted last year have had precisely the opposite effect. Looking at the number of defendants being held in jail before trial in one major county (Prince George’s) in months before and after the new rules took effect, the report found more defendants were in pre-trial detention after the rule changes took effect.

Why? Apparently because while the use of cash bail has declined, judges have decided to hold more defendants without bail, refusing to release them on their own recognizance. The report noted while the percentage of presumably innocent defendants ordered to post money bonds fell from 61% to 50%, persons held without bond climbed by 14.5%.

Similarly, several months before the latest report, the Maryland agency for public defenders summarized what volunteers from nearly a dozen groups found by sitting in on bail hearings in Baltimore and four counties (not including Prince George’s): declining use of money bail, but what it termed “overuse” of detaining people without bail. Several explanations were offered: concern over the political effect if defendants released without bail or on very low bail committed new crimes, and a lack of resources for alternatives (such as monitoring) for persons regarded as potentially dangerous.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, (Middle Street Publishing, 2017), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014). He regularly contributes to New York Daily NewsPrison Legal News and Criminal Legal News. He can be found online at ChristopherZoukis.comPrisonEducation.com and PrisonerResource.com.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).