Baltimore Residents Held In Jail At Higher Rates Than Before Bail Reform

This story was produced in partnership with The Baltimore Beat.

Seven years after Maryland tried to reform the cash bail system, people who get arrested in Baltimore are being held in jail before trial at a higher rate than before the change.

While the use of cash bail has dropped since the bail reform effort, nearly two-thirds of all initial appearances in Baltimore — the first hearing an arrested person has before a court official — now end in a bail denial, a rate that has surged by about 300% since the state judiciary changed the rules surrounding pretrial release in 2017.

The population at Baltimore’s main pretrial detention center has risen since 2017, even as arrests have declined during the same period. People who are held in jail before trial can wait months or longer before their case concludes, even though they are presumed innocent and criminal cases in Baltimore often end without a conviction.

The biggest shift since the rule change has come from court officers denying bail entirely, according to data provided by the state judiciary and analyzed by Baltimore Beat and The Garrison Project.

The data shows: 

• Since the bail reform rule change in 2017, the use of cash bail at initial appearances has fallen dramatically in Baltimore, from about 40% before the 2017 effort to under 5% in the first half of 2023, the most recent data provided by the state judiciary.
• Baltimore’s overall release rate — the proportion of people freed on unsecured bond or on their own recognizance at their initial appearances — rose at first after bail reform, but then fell back below pre-reform levels.
• In 2016, court officers in Baltimore held people without bail at their initial appearances less than 15% of the time, but bail denials quickly spiked after the rule change and have hovered around 60% since 2020.
• These are not brief stints in jail. More than 60% of defendants who have an initial appearance are still in custody five days later.

What happens at initial appearances?

The 2017 bail reform effort was designed to reduce the crushing, unequal costs of cash bail and stop judges from holding people in jail pretrial simply because they could not afford to pay — a practice that was likely unconstitutional, the Maryland Attorney General’s Office said in 2016.

Yet the population at Baltimore’s main pretrial detention center has risen from under 700 people per day on average in 2017 to more than 900 in 2023. The facility’s health care system is under intense scrutiny, and at least four people have died in pretrial custody this year, including a man who was held on $3,500 cash bail after being accused of stealing snacks from a vending machine.

Christopher Dews, a lobbyist who represents Out for Justice, a nonprofit that supports formerly incarcerated people, said the difference after the 2017 rule change was clear when he worked on the Job Opportunity Task Force’s bail fund in Baltimore. The number of people eligible to be bailed out of jail dwindled and then reached zero, he said.

The result has frustrated reform advocates who considered the rule change a victory but have since watched it backfire.

“It is quite painful, the reality that whenever we have a massive policy win for equitable criminal justice reforms, it does seem as if the state finds non-legislative, non-policy ways to thwart those successes,” Dews said. “As advocates, we prepare to defend our wins, but you can only defend wins so much from the state that has to implement those same wins.”

The pretrial system became more black-and-white after the rule change, added Nicole Belle, who was a case manager for the Job Opportunity Task Force’s bail fund from 2021 until early 2023. People facing charges were either released or held without bail.

The majority of defendants are being held for more than five days after their initial appearance.

The consequences of pretrial detention can be devastating, lawyers and advocates said, particularly since the people held there are legally innocent. Criminal defendants are presumed innocent until they have been proven guilty at a trial or pleaded guilty.

A 2019 study by the Baltimore Action Legal Team, an activist legal organization, found that the majority of Baltimore defendants who were incarcerated pretrial were never convicted of a crime, either because their charges were dropped or they were acquitted.

“An arrest is an allegation that disrupts the lives of individuals, families and communities by leading to job loss, financial consequences, family disruption and mental health stress,” said Melissa Rothstein, the Chief of External Affairs at the Maryland Office of the Public Defender.

“We certainly haven’t seen the meaningful change that we had hoped for, that the rule was intending,” she said.

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Here’s how bail gets set in Maryland: when a person is arrested, they have a hearing before a  District Court commissioner within 24 hours, known as an initial appearance. Commissioners are not judges and do not have to be lawyers to hold the job; they are appointed by the chief judge of the District Court of Maryland.

Commissioners can decide to hold an arrested person in jail without bail, release them, or set a cash bail. If the person can pay that amount, either themselves or through a bondsman, they can go free. If they can’t, they stay in jail. People denied bail remain in jail — they cannot pay to be released.

People who are not released at their initial appearance then get a bail review before a District Court judge the next time the court is sitting. That judge will decide whether to set bail, release the person or hold them without bail until they go to trial.

People held in pretrial detention can ask to have their bail reviewed again as their cases proceed, too.

Initial appearances take place at the Baltimore Central Booking & Intake Center, the city’s main pretrial detention center. Bail reviews, the secondary process for people who are held at their initial appearances, happen at the city’s district courts every day. A group of people who have been arrested appear remotely before a judge, popping up on a television screen wearing jail uniforms and handcuffs. Their faces are hard to make out on the screen, and they say very little.

A representative from pretrial services gives the judge a quick rundown on each person: their address, their employment status, charges and past convictions and whether they have ever failed to come to court previously. Pretrial services in Baltimore City recommends denying bail in the vast majority of cases. Between January 2023 and June 2024, the rate at which pretrial services recommended no bail never dropped lower than 75% and was sometimes as high as 85%, according to data provided by the agency.

A prosecutor also weighs in, sometimes offering more information about the underlying charges, followed by a defense attorney. Some people have private attorneys, but many are represented by public defenders at their bail reviews.

The proceedings rarely take more than 10 minutes. The judge usually gives a brief explanation for their decision before announcing whether the person remains in jail or goes home.

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In an email, Judiciary spokesperson Terri Charles acknowledged that there has been “an increase in those preventively detained since the new rule was implemented.” There are several reasons for the shift, she said.

Charles said that the number of people being arrested has also fallen by about a third since the rule went into effect because of “legislative changes …changes in police procedures in the aftermath of Freddie Gray, COVID, the increase in the use of citations in lieu of arrest, and the decriminalization, and then legalization, of marijuana.”

That means people coming before commissioners often have more serious charges than in the past, she said.

Commissioners also don’t have discretion to set bail in some cases, like when a person who has previously been convicted of a violent crime is accused of committing another one. About a quarter of all people held without bail can’t be released because state law forbids commissioners from releasing them, Charles said. People experiencing mental health issues are often also held without bail while they await treatment at a state facility, she said.

The data used for this analysis has been provided to Maryland lawmakers annually since the 2017 bail reform effort. There are limits to the information: the data does not show what charges have been filed against the defendants or individual defendants’ history in the criminal justice system, nor does it provide race or other demographic details that could clarify the impact of the rule change on different populations.

Maryland’s bail reform effort began in 2016 when the Attorney General’s Office raised questions about the constitutionality of holding people in pretrial custody because they could not afford cash bail.

“You can’t imprison someone for poverty,” then-Attorney General Brian E. Frosh told The Baltimore Sun in 2016. “For one guy, $1,000 bail is no big deal. For somebody else, they might not have 100 bucks, much less $1,000.”

After extensive debate, the Maryland Supreme Court (then called the Maryland Court of Appeals) approved a rule change in early 2017 that was designed to “to promote the release of defendants on their own recognizance or, when necessary, unsecured bond.”

The goal of the new rule was to safeguard against defendants sitting in jail because they were too poor to pay their bail. Commissioners were instructed to impose financial conditions only if there was no other way to ensure the defendant showed up for court or to protect the community, victims or witnesses.

It didn’t take long for the state’s pretrial release data to show that more people were being held without bond after the 2017 rule change. Criminal justice reform advocates have repeatedly asked the state to address the issue, but neither lawmakers nor judges have taken it on.

“Everybody knows the rates of incarceration have basically stayed the same, and the people that used to be held on unaffordable bails are just being held without bond,” said Colin Starger, a professor at the University of Baltimore School of Law.

“But the overall will to change hasn’t become a priority,” he said. “It feels risky, and that’s not a risk that folks have been willing to take in the climate we have and the public safety situation we have.”