Maryland’s pre-trial population has increased since bail reform was enacted in 2017. But Illinois has a reform model that might work for the state.
This piece was produced in partnership with The Baltimore Beat.
On a foggy day in mid-December, a young Black man peers up from a grim-looking room at Baltimore’s Central Booking & Intake Center, tugging nervously at his hair.
He is speaking through a computer screen to Commissioner Kathleen Puckett, who is sitting in a cubicle at a district courthouse six miles south of the jail. Puckett, a smartly dressed Black woman with graying temples, will decide if the young man goes home tonight.
The man, 21, is accused of slapping a woman during a domestic dispute four days earlier. He insists he never slapped her. But on Dec. 10, police picked him up on an arrest warrant and brought him to Central Booking.
This remote court hearing, known as an initial appearance, appears friendly despite the circumstances. When Puckett asks for the man’s social, he responds, “Like Instagram?” before Puckett clarifies that she means his Social Security number. They both chuckle at the misunderstanding.
Despite the cordial back and forth between the judge and defendant, and some seemingly good facts on his side — he does not live with the woman he is accused of slapping, and four days have apparently passed without incident since the alleged assault — the hearing ends like many others in Baltimore and across Maryland: Puckett orders that he remain in jail.
“At this time, you are being held without bond for victim safety,” Puckett says.
“I didn’t do nothing to nobody,” the man responds, his voice rising in frustration. “It’s crazy.”
The man disappears from Puckett’s screen.
Puckett doesn’t explain the reasons for her decision. She may have felt wary of releasing him because he was accused, though not convicted, of illegally possessing a firearm in 2023. (One study from 2019 found the majority of Baltimore defendants who were detained pretrial were never convicted of a crime, either because their case was dropped or they were acquitted.)
“Each case is different,” Puckett says during a break. “More than likely if I’m holding you, it’s for public safety.”
The next day, the man is released from jail after a district court judge reversed Puckett’s decision and freed him on $25,000 unsecured bond.
The 21-year-old’s predicament illustrates the rigidity of the pretrial system that has spread through Maryland’s judiciary since new bail rules were introduced in 2017. Though they were designed to relieve the burden of cash bail on the poorest Marylanders, the reforms drove pretrial jail populations up across the state as court officials instead held more people without bail.
The pretrial jail population is higher now than before bail reform, both in Baltimore — as Baltimore Beat and the Garrison Project reported in November — and statewide. Data from the Governor’s Office of Crime Prevention and Policy shows the pretrial jail population in Maryland hit a low of 5,838 at the beginning of 2017, the year bail reform took effect, and then began increasing, reaching 6,890 at the beginning of 2024.
Pretrial defendants, who are considered legally innocent, make up the vast majority of the local jail population in Maryland today. In 18 of Maryland’s 24 local jurisdictions, the pretrial population is higher now than it was in 2019.
Debra Gardner, legal director of the Baltimore-based Public Justice Center, said it felt as though judges “went into the proverbial smoke-filled room” after bail reform took effect and decided to begin denying bail in cases where they previously would have issued cash bail.
In reality, judges and commissioners seem to have reached the same conclusions on their own. “It was just easier before to set a bail that was unconstitutionally high,” rather than release a defendant and risk public blowback if that person committed another crime, Gardner said. When that was no longer allowed under the 2017 bail reform, judges quickly realized they could hold defendants without bail instead.
“So, as if by magic, we had a tremendous bail reform that did not result in a reduction in the pretrial population — the goal of the reform — one iota,” Gardner said.
It doesn’t have to be this way. Unlike Maryland, Illinois has seen the intended results of bail reform: fewer people sitting in jail before trial.
In 2021, Illinois abolished cash bail and did so in a way designed to avoid increasing the jail population. The state’s Pretrial Fairness Act, which took effect in 2023, formalized a presumption in favor of releasing people charged with crimes and laid out which offenses are eligible for detention.
Sharlyn Grace, a senior policy advisor at the Cook County Public Defender’s Office in Chicago, said it was crucial to build clear limits on judges’ and prosecutors’ power into the Pretrial Fairness Act. Illinois law already favored release before the act passed, she said, but judges had adjusted their decisions to continue detaining people anyway.
“Procedural protections … can just become scripts that judges read before they make decisions that have the same outcome,” Grace said.
Maryland attorneys report something similar: since bail reform, judges and commissioners use similar language over and over again at bail hearings, citing “victim safety” or other permissible reasons before detaining someone.
With the Pretrial Fairness Act, lawmakers and reformers in Illinois got specific, codifying the presumption in favor of release and outlining precisely which charges could result in pretrial detention. Most misdemeanors are not eligible for detention, and in the case of more serious crimes, like violent felonies, defendants can be denied release only if prosecutors prove they pose a threat to the community based on the facts of the case.
Bail reform in Illinois also required cultural change among judges, Grace said. Well-meaning reforms can fail if they don’t force the legal system to behave differently than it has in the past, she said.
“Intentions are not enough,” she said.
Yet Maryland judges and lawmakers have not addressed bail again since 2017. One program created during the coronavirus pandemic to cover the cost of pretrial electronic monitoring for poor defendants faced a funding crunch last year but would continue under a new budget proposal from Gov. Wes Moore.
Former Maryland Attorney General Brian E. Frosh, who pushed for the passage of bail reform through the judiciary’s rules committee, said it was always clear that more people would be denied bail when judges moved away from using cash bail.
“The mere increase in people being held without bail is not necessarily something that shows that the system is failing,” he said.
While Frosh called it “disturbing” that Baltimore’s pretrial jail population has increased, he also said there are a host of reasons for the shifts since bail reform was enacted in 2017. Not all counties have robust pretrial monitoring programs, which might make judges more reluctant to release defendants.
“You’re never going to have a system in which people who are released absolutely don’t commit any crimes. That’s not going to happen,” he said. “And you’re never going to have a system in which absolutely no one who deserves to be released is kept behind bars. You’re always going to have mistakes.”
He argued the reforms accomplished a lot by significantly reducing the use of cash bail. Prior to 2017, many defendants in Maryland sat in jail simply because they were poor.
Criminal justice reformers counter that prolonged pretrial detention because of a bail denial can be just as crushing — and that Maryland’s judges and lawmakers have not done enough to curb these denials in the years since bail reform.
The judiciary has been resistant to criticism of the bail reform effort. Colin Starger, a professor at the University of Baltimore School of Law, co-authored a 2022 article in the Maryland Law Review that found a 2020 effort to reduce pretrial detention during the pandemic largely failed in Baltimore, and that Black defendants were more likely to be detained than white ones.
In early 2023, members of the judiciary were invited to a panel discussion on the findings; instead, a judiciary spokesperson sent a letter accusing the authors of presenting “a purposefully one-sided view of the evidence in each case observed.”
“The intent was never to make this about bad judges,” Starger said of the 2022 study. “It’s not about that. In order to correct a systemic problem that cuts across education, political enfranchisement, all the way through to the bail system, you need to have an awareness of that and you need to be able to think outside of your own area of focus.”
“It was disappointing that the (judiciary’s) letter didn’t recognize that’s really what we were trying to talk about,” he said.
In Maryland, attempts to fix the pretrial bail system have spanned decades. Since the 1990s, there have been at least 10 task forces, committees or reports examining pretrial procedures, according to a report from the National Center for State Courts. A dozen bills related to pretrial detention have failed to pass out of the General Assembly in that time.
Since the 2017 reform effort, there have been no additional rule changes related to bail, even after a rules subcommittee dedicated to rooting out bias and discrimination in the courts received multiple submissions about the rise in bail denials.
In its final report in 2022, the subcommittee acknowledged 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.”
The rules subcommittee received multiple recommendations for a system similar to the one in Illinois, which would create a presumption of release unless prosecutors could show a defendant posed a risk.
But the proposed adjustments have not happened, either in the judiciary or the General Assembly.
Sen. William C. Smith, a Montgomery County Democrat who chairs the Maryland Senate’s Judicial Proceedings Committee and sits on the judicial rules committee that approved the 2017 bail reform changes, said in an interview that a higher pretrial population was “the exact opposite of what we intended.”
Smith acknowledged that the issue of pretrial detention has not been at the top of lawmakers’ minds since the 2017 changes. After reviewing Baltimore Beat and the Garrison Project’s reporting, Smith said he plans to raise the issue with the judiciary’s rules committee and ask Maryland’s Office of Program Evaluation and Government Accountability to analyze what has gone wrong since bail reform.
“You have to diagnose exactly what’s happening first, before you can proffer any sort of rules change or legislation,” Smith said. “But obviously, it’s a trend that doesn’t make sense to me, and is not the intended consequence of our reforms.”