Keith Lotridge, Chief Public Defender in Prince George’s County, Maryland, explains the problem.

“You’re arrested for a crime,” he says. “Within 24 hours, you appear for Initial Bail Review. There’s a charging document, maybe a statement by the alleged victim. On the basis of that, the judge makes a determination on bond.”

Except the judge doesn’t do that. In Prince George’s County, the system allows for more than just a binary decision on remand or release. Judges may elect to walk through door number three.

“Pretrial option,” Lotridge says. “The defendant is ‘authorized’ for release, but the decision is left up to the pretrial release unit.”

Pretrial Services is a subdivision of the jail, a corrections office. Among other things, it’s responsible for supervising defendants through electronic monitoring. Mirroring a process that may take place before bail hearings in other states (like the Criminal Justice Agency review arrestees go through in New York City) the defendant’s suitability for release is scored according to a series of criteria. These may include an address in the county, a telephone number, no pending cases in any other county, no active monitoring in Washington, DC, etc. Assuming the defendant meets enough criteria, he or she can be released.

Pretrial services are often lauded as an alternative to cash bail, but “the system is flawed,” as Lotridge puts it. If you’re not from Prince George’s County but get arrested there, or you don’t have a landline telephone (who does anymore?), or of course if you’re homeless, you might not pass the “risk assessment” test.

The main problem, however, has to do with the chronology of the assessment, which allows both judges and the jail to play volleyball with detention decisions.

In the parody of the bail process described by Lotridge, judges can punt crucial decisions about release to pretrial services. Although the system seems not to have been designed for this purpose — Lotridge is careful to point fingers at the jail system, not the bench — as it currently stands, judges facing thorny decisions can buy the equivalent of a political options contract as an alternative to judgment.

If the defendant is innocent but ends up unjustly jailed for a long time before trial, not the judge’s fault: he or she “authorized” release. If the accused gets out and commits a serious crime, also not the judge’s fault: it was Pretrial Services that released the defendant, not the judge.

Often, defense attorneys won’t even know the client is still incarcerated. They may leave a bail review hearing thinking a client is getting out, only to find out days later, through a relative, that the defendant is still inside. Lotridge’s office at that point will often seek a second bail review, but that’s no guarantee of release. Meanwhile, the defendant is “sitting in what amounts to a locked concrete closet,” as Lotridge says.

Howard University’s Thurgood Marshall Civil Rights Center just released a study about bond hearings in Prince George’s County, and observed an additional dystopian complication:

Judges routinely order someone detained without bond, but give them the option of release to Pre-Trial Services. However, Pre-Trial Services in turn, often require judges to explicitly order pretrial release, rather than give the defendant the option for Pre-Trial Services... The Clinic has observed defendants stuck in limbo, in which the judge passes the buck to Pre-Trial Services and Pre-Trial Services passes the buck to the judge, with neither taking full responsibility for the release of the defendant.

The endgame to this hamster wheel of non-decisions is that “people get stuck as two systems fail to act,” as Lotridge puts it. As a result, people “authorized” for release stay in jail, a problem that’s particularly serious in the Covid-19 era.

“We’ve had less than five jury trials since March,” Lotridge says. “If they decide not to release a defendant, they could be in jail for a year before they get anywhere near a trial date."

The pandemic underscored the obscenity of the situation. Last spring, at a time when Prince George’s County was being described as the “epicenter” of a coronavirus outbreak in Maryland, the Prince George’s County Jail was a hot spot within a hot spot. Department of Corrections Director Mary Lou McDonough at the time was comparing jails to “cruise ships without the views or amenities.” Reports began to leak out from inside the jail that prisoners weren’t being educated about Covid-19, and precautions were limited to giving inmates one paper mask and “one or two bars of soap when they arrive.”

The situation deteriorated to the point where the Civil Rights Corps filed a class-action suit on behalf of prisoners, accusing the PG County Jail of fueling a health crisis by failing to take basic steps to protect detainees.

At the time of the suit, the jail was holding at least 113 people who’d been authorized for release in highly infectious conditions. They argued it was legal. As the AP put it, “The county draws a distinction between court-authorized and court-ordered releases. Its lawyers say nobody has been detained in violation of a court order.”

An additional problem, best left for a longer article, involves another step taken by this jail, and by others across the country: prisoners affirmatively ordered released but kept inside anyway, by correctional officials simply not wanting to release Covid-positive defendants into society.

As the Maryland suit described it, “The Jail also refuses to release COVID-positive prisoners—even when they have no legal basis to detain them—until the Jail deems them non-contagious.”

If and when the pandemic comes under control thanks to vaccines (we can be sure prisoners will be last in line to get those), the tally of prisoner deaths is likely to be extremely high. As of this writing, over 249,000 prisoners have contracted the disease, with 1,657 dead, a crisis surely complicated by procedures like the one Lotridge describes.

“ We have people who are dying in the jails across the country,” Lotridge says. “We can do something about it if we simply get people out of there.”

The loophole in Prince George’s County is just one example of a creeping problem of the bureaucratization of jurisprudence. In the public imagination, decisions about things like pretrial detention are legal matters, with judges weighing the risk of flight, the seriousness of the crime, and so on.

In truth, these questions are often decided by things that have nothing to do with cases, like access to money, the size of the venue’s case backlog, or the detention procedures in the jurisdiction. In this bureaucracy, as in any other, when people can pass the buck, they will, even when lives are at stake.