Baltimore: How a Broken Bail System Leads to High Incarceration Rates and Costs

By Inimai M. Chettiar

This blog post was originally posted to the Brennan Center for Justice blog on September 26 during JPI Bail Month.

Today, the Justice Policy Institute (JPI) released the third in its series of reports highlighting the nation’s broken pretrial incarceration and bail system. The report, titled Bailing on Baltimore, Voices from the Front Line of the Justice System, focuses on Baltimore, Md., as an example. The selection of the Baltimore City Jail, one of the 20 largest in the country, was deliberate. It is one of the few jails that keeps data on those incarcerated and their bail amounts.

Like most counties, Baltimore’s bail system relies almost entirely on “money bail,” meaning the accused need to pay to gain their freedom before adjudication. Remember, these people are only accused of a crime, the state has yet to prove its case and they are, as a legal matter, innocent. Nonetheless, their continued liberty is dependent on their bank balance. Although bail commissioners in Baltimore have the power to release defendants on their own recognizance, this option is rarely chosen. In fact, there is almost never an assessment of the effect of pre-trial incarceration on the defendant, their ties to the community, and the likelihood they may commit another crime if released. It is a simple monetary decision. Either pay the price that is set (based on the accusation and a previous record, if any), or go to jail. Equally disheartening is that a majority – 61 percent – of all defendants are not even offered the money option in the first place. They are incarcerated straight away. In addition to considerations of fairness and justice, this is also a rotten deal for taxpayers and government budgets. An incarcerated person is prevented from contributing productively to the economy or society, and the government must pay for their incarceration and day-to-day needs. Such a system has little economic grounding.

Page Croyder, who spent nearly 21 years in the Baltimore State’s Attorney office and now writes a blog about the criminal justice system, perfectly describes the fundamental unfairness of a system dependent on ability to pay. “The bail system has gotten so ‘This is how we do it’ that it’s become disconnected from its purpose and highly discriminatory against poor people,” Croyder told JPI. “For example, take me and someone poor: say we are both arrested for the same crime, we have the same background, and we pose the same risk to public safety—but I have financial resources and the other person doesn’t. I can post bail and get out of jail, and he can’t.”

Locking up someone based on their financial resources instead of their threat to public safety makes no sense in a system whose primary goal is to protect citizens. The report also gives examples of the human toll. One case discussed in the report is that of Travon Alston. Arrested at age 18 because he was in a fight, Altston’s bail was set at $250,000. Alston could not post the amount, so he spent more than nine months in jail where he was stabbed.

This report – along with Bail Fail and For Better or For Profit – provides sorely needed illumination on a system that is a starting point for mass incarceration. As state and municipal budgets grow ever tighter, lawmakers and the public would be wise to read these reports, and consider the recommendations that JPI, the Brennan Center, and other advocates have supported.  Among them:

• Using citations and summonses instead of arrest for low-level offenses;
• Using risk assessments – including the effect of pre-trial detention on a defendant’s family – before determining whether bail should be granted and its amount; and
• Denying bail only to those who pose a grave risk to public safety.

These reforms will not only lead to a system that is more just, but will also create a system that makes practical commonsense. Low-income communities will gain productivity; states and municipalities will save on incarceration costs; and public safety will continue to be protected.

Inimai M. Chettiar is the Director of the Brennan Center’s Justice Program.The Justice Program works to secure our nation’s promise of “equal justice for all" by creating a justice system that is economically and rationally sound, in line with the principles of justice, and without racial disparity. 

Note: JPI has named September JPI Bail Month and has published a series of reports on bail, for-profit bail bonding and the community impacts of bail. JPI has also hosted a series of events throughout the month including panel discussions and conference calls.