Bail reform continues to stump Maryland’s top legal decision-makers, who declined to take up the issue at a May 22 committee meeting. That’s despite reporting that showed the state’s 2017 effort to reform the cash bail system backfired as judges began holding more people in jail without bail instead.
The Maryland Judiciary’s rules committee suggested that a solution will need to come from lawmakers, rather than through additional changes to judicial rules. The discussion came not long after Baltimore Beat reported that the number of people being held in jail pretrial has actually gone up since Maryland tried to reform the cash bail system.
“I don’t want people to come away from this meeting and suggest that we’re done thinking about how to get bail right,” said Judge Douglas Nazarian, the vice chair of the rules committee. “I think at the moment, we’re struggling to think about where to take it.”
The 2017 bail reform changes were designed to stop judges from holding people in jail pretrial simply because they were too poor to pay cash bail, a practice that was widespread and likely unconstitutional, the Maryland Attorney General’s Office said at the time. But as the Beat reported in November, the reform effort fell flat as judges stopped using cash bail and instead began holding more people without any bail at all.
The result, seven years after bail reform, is that more people are now sitting in jail while they await trial, both in Baltimore and across the state — which is the opposite of what criminal justice reformers hoped for when the rule changes passed.
The May 22 meeting showed the continued reluctance of Maryland’s political and judicial leaders to address or even acknowledge bail reform’s failures. Some of the state’s top legal leaders recently called for a series of criminal justice reforms to address racial inequalities in the legal system, including reducing pretrial detention, but the issue has gained little traction among lawmakers.
The committee, which proposes changes to the rules that govern Maryland’s judges that are then considered by the state Supreme Court, did not address any possible adjustments to the pretrial system during its brief informational discussion.
“We created a neutral rule that was supposed to address the situation,” Nazarian told the committee. “We can argue about what the data are, about how well it’s addressing it or not.”
Reform advocates say that bail data shows judges have simply switched from holding people in jail on unconstitutionally high cash bail to holding people in jail with no bail, and now justify their decisions under the 2017 rules by claiming that these defendants pose a flight risk or a danger to the community.
Some judges, however, have suggested the true cause is a rise in serious crime since bail reform was enacted, though the Judiciary has not provided data to support this. State data shows that the violent crime rate in Maryland was lower in 2023, the most recent year data was available, than it was when bail reform was enacted.
The rules committee’s decision to take no new action ignores previous recommendations by its own subcommittee dedicated to identifying ways that the judicial rules perpetuate systemic racism. In 2022, that subcommittee wrote that the 2017 bail reform changes “have not reduced pretrial detention and that, worse still, the brunt of this problem will continue to fall disproportionately on the poorest defendants and defendants from historically disadvantaged communities.”
“The subcommittee urges the decisionmakers to continue to focus on this problem and not to treat the (rule changes) as final or definitive or having solved the problems.”
Debra Gardner, the legal director of the Baltimore-based Public Justice Center, said after the May 22 meeting that the subcommittee was “very clear that the rules committee should not consider the bail reform rules changes to have solved the problem and be the end of the story. And yet that certainly seems to be the message that was sent today.”
A different subcommittee that examines rules related to criminal cases held one meeting on the issue in July 2023, then took no additional action, according to written comments Gardner submitted ahead of the May 22 meeting. The criminal rules subcommittee met about the topic again in April, after the Beat reported on state government’s repeated failures to address bail reform.
Subcommittee meetings are not open to the public, but according to Gardner’s written comments, the criminal rules subcommittee “simply revisited the question debated at its July 2023 meeting and decided to propose that the Rules Committee take no action on this issue so vital to equal justice under the law.” Interested parties who had previously participated in bail reform discussions were not given notice of the meeting, Gardner wrote.
The solution to bail reform isn’t an enigma — Illinois has found success after lawmakers there abolished cash bail in 2021 and specified which offenses are eligible for pretrial detention, which led to the jail populations falling.
Here, lawmakers have done little to address pretrial incarceration or to beef up pretrial services statewide. In the past, the rules committee has pointed to the lack of robust, consistent pretrial services in every county, which could make judges hesitant to release defendants without adequate supervision, as a key hurdle for bail reform.
“We’ve seen examples where the prioritization of pretrial services availability can really make a difference, but we don’t have the common political will to take that across the state at the moment,” Nazarian said.
Gardner called the rules committee’s inaction “disheartening.”
“People who care about pretrial justice are left to figure out how to keep pushing and who to keep pushing to have any attention to such an incredibly racialized, disparate impact within the criminal legal system,” she said.