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Commentaryby Todd Oppenheim12:17 pmJan 29, 20210

Amid a pandemic, defendants are languishing in jail for lack of home detention funding

Noting that private home detention is costly and public home detention is too rarely available, especially in Baltimore, a public defender calls for change [OP-ED]

Above: When the lawsuit was filed in 2016, no Marylander serving a life with parole sentence had been granted parole in two decades.

Imagine getting arrested in 2019, being held in jail without bail, and having your trial date in 2020 postponed indefinitely. Here we are in 2021, and you’re still awaiting a day in court.

With the justice system at a Covid-19 standstill, that’s a reality for too many Marylanders, but it’s an especially pernicious problem in Baltimore.

The city’s pretrial system creates unique injustices for incarcerated city defendants. As a city public defender of 17 years, I know.

One of the major problems is the city’s lack of free, “public” home detention for judges to order during bail review hearings. In other counties, it’s more available.  The only alternative, private home detention costs money:

There’s a startup fee of about $100. Sometimes it’s waived for indigent clients. Then, it’s $10-20 a day for most folks – and the first two weeks are due up front.

For poor people, this is totally prohibitive and not much different than a bail system. If payment issues arise, judges can issue arrest warrants. With court dates uncertain during the pandemic, folks have no idea how long they’ll have to pay. The companies are making a killing.

A pair of bills introduced by Senator Shelly Hettleman and Delegate Stephanie Smith (SB 23 and HB 316) aim to close the gap on private home detention by providing funds for indigent defendants’ fees.

The bill is a great step towards completing the goal of pretrial reform in Maryland that began with a move away from the cash bail system several years ago. During the pandemic, it could also save lives – especially in the confined, unsanitary spaces of Baltimore jails.

Owned by the State

Understanding the unique setup of Baltimore city’s pretrial system is key to unraveling our home detention problem. In 1991, the state took ownership of the city’s jail and assumed control over its pre-trial release program through the newly-created Division of Pretrial Detention and Services (DPSCS).

Meanwhile, many other jurisdictions, such as Montgomery and Baltimore counties, operate their own pretrial services unit and have better programming and more efficient release processes. They also operate their own home detention units. The city does not.

In 2011, 90% of the DPSCS budget ($1.3 billion), went to the Detention Center, while only 3.5% of it went to Pretrial.

If someone gets arrested in the city and has a bail review (at any point), a judge can order a release conditioned upon enrollment in private home detention for any case, charge or defendant.

The judge can have ALERT or ASAP, the two available companies, tailor monitoring for the defendant. For instance; 24/7 lockdown or probation, with doctor or work exceptions.

Private home detention costs the defendant money. There is an alternative – free so-called public home detention. All judges can do is recommend someone for eligibility, but most don’t.

Lengthy Process

Because the city’s jail facilities are state run (half of the pretrial population is housed in state prisons, but Central Booking is also state run), the home detention unit exists predominantly for people serving prison sentences.

So, if a judge recommends, it can take several months to be released. People must be assessed – have a record check, along with home and phone verification. All of this takes too long.

In many other counties like St. Mary’s, Prince George’s and Anne Arundel, if a judge orders home detention, no matter the charge, you get it.

The bottom line is that any violent charge, no matter how strong the defense, is not eligible by statute. People with any charge who’ve had a violent conviction within the last three years are ineligible too. So, many of our felony clients are excluded.

A lot of these cases may look serious by way of charges, but they are not. Also, a large number of folks deemed violent due to a past conviction have either changed their lives or had a bogus disqualifying case. Most misdemeanor clients are already getting released on their own recognizance because of the past bail reform.

Unfortunately, city judges and lawmakers often don’t understand the setup and options.

But in many other counties like St. Mary’s, Prince George’s and Anne Arundel, if a judge orders home detention, no matter the charge, you get it.

These other counties have pretrial units with their own GPS divisions. Just look at Baltimore County, which not only has its own unit, but also waived all fees.

Humane and Helpful

Under the bills, defendants’ home detention payments to private companies in certain circumstances would be covered by the state.

Prior to the pandemic, most city judges would never consider private home detention, partly because Pretrial was not involved, but they’ve shown sympathy and a greater acceptance as the virus situation worsens – and found that home detention works.

To be clear, home detention isn’t thrilling. It’s jail at home. Ultimately, we need to move away from the concept of pretrial incarceration, including home detention, and establish more robust pretrial services monitoring programs with enhanced community-based services in Baltimore City and many localities around the state.

For now, though, this bill leads us towards a more humane scenario for defendants and, during a pandemic, a solution that may save lives.

– Todd Oppenheim is a supervising attorney in the Baltimore City Public Defenders Office and a past candidate for Circuit Court Judge. Twitter: @Opp4Justice.

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