Pretrial Detention: Punishing the Poor

Innocent until proven guilty, right? Not so much in Maryland when it comes to pretrial detention. Pretrial detention is where a person who has only been charged with a crime but has not yet had a trial determining guilt or innocence is held pending trial. Unfortunately, the amount of money you have available is what ultimately stands between you being able to go about life as usual until your trial date and you being locked behind bars.

For starters, it is important to note that the United States Constitution, as the highest law of the country, sets the basic limits of the law in America. Therefore, in order for a state law to be constitutional (or enforceable), it must be consistent with the boundaries placed by the Constitution.

The Fourteenth Amendment of the United States Constitution prevents states from discriminating, which is treating people in similar situations differently. In terms of pretrial detention, this means that a person of lower income accused of committing a crime and a person of higher income accused of breaking the law are both given the same rights under the law. Neither person can be provided better treatment or more options because of his or her finances.

On paper, Maryland law does not violate the Fourteenth Amendment. Maryland’s pretrial detention statute states that unless a violent crime is involved, there is an expectation (known as a presumption), that the defendant will be released. When determining whether an individual should be held before trial, two concepts are important: 1) the safety risk Defendant poses to society and 2) the likelihood that Defendant will leave the state prior to trial.

Courts are supposed to first decide if there are reasonable conditions a judge can place on the defendant to ensure there is a trial date and that no one gets hurt if the defendant is allowed to be released. These conditions usually result in two types of pretrial release. One form of release is where the defendant is permitted to leave on his or her own recognizance. This occurs when the Court believes that the defendant’s employment or other permanent connections with the community indicate the he or she can be trusted to stay in the state and therefore come to court on the scheduled trial date.

The other basis for release is where the judge sets a bail, which is a fee the defendant pays that is returned to the defendant after trial. The bail payment serves as reassurance to the judge that the defendant will appear in court. A bondsman is a company that pays bail for a defendant who cannot afford to make the payment himself. When a defendant uses a bond service, the defendant must pay a certain percentage that is not returned to him or her. The accused also gives the bond company his property, a car, or a house, to secure the loan. The bond company then agrees to pay the remainder of the bail if the defendant does not come to court. Because the defendant uses the defendant’s own property or collateral in exchange for the loan, the court is given sufficient reliance to allow the defendant to be released. If the defendant fails to appear on his or her trial date, the defendant loses the property used as collateral.

When making a pretrial detention determination, courts are required to examine the facts presented in each individual case to decide which of the conditions mentioned above is appropriate. Once the court finds that it will choose the bail option, it is permitted to consider different factors, one of which must be the defendant’s income. This is because the conditions of release are supposed to be efficient, meaning the fewest restrictions on a person’s freedom that are necessary to meet the law’s safety and prosecution (when you have a criminal trial) needs.

In practice, when looking at what actually happens when a criminal defendant comes to court to be informed of his or her charge(s), the two pretrial detention goals discussed above are ignored. The accused‘s finances, in terms of a bail he or she can reasonably afford, is not given importance. Judges impose bail amounts randomly rather than in accordance with a clear, logical system. There ends up being no correlation between the threat level the defendant poses to society and the amount of bail the Court orders. Under this system, you get the sad reality where people have to wait out their time in a cell because they do not have the means to pay for their release. These are the same people who have not committed violent crimes and who the Court found would be responsive to release restrictions, which made pretrial detention unnecessary.

Contact Fred Antenberg, an attorney with over 30 years’ experience handling criminal cases in Howard County and surrounding counties in Central Maryland. Call (410) 730-4404 now for a Free Initial Consultation.