Transparency and resource demands combine to squeeze the Maryland courts

The Capital Gazette reports on a loophole in Maryland’s electronic filing system, which allows attorneys to designate documents as “confidential” without filing a separate motion to seal with the court. Using the designation effective prevents interested parties, including the media, from accessing the court filings.

Court documents are presumed to be publicly available, and normally a party must move the court to seal specific documents and provide good reasons for the request. It appears that when Maryland moved to electronic filing in 2014, the system was set up to allow attorneys in cases with exposing sealing orders to designate certain documents as confidential. Lawyers are warned not to designate documents as confidential unless they are covered by a rule or statute. It appears, however, that many documents that should be public have been improperly designated.

The courts do not monitor electronic filing designations on a regular basis, which is probably sensible given the court system’s limited resources. But some greater allocation of resources — either in monitoring or in fixing the electronic loophole — may now be warranted.

The effects of dropping bail bond practice

Back in May, I flagged an interesting story about state courts radically revising the cash bail system for criminal defendants. The changes were notable in part because bail is a quintessentially American practice, and a classic example of the court system’s interdependence. In an op-ed today, Walter Olson argues that revisions to the bail system may also have had the unintended effect of causing judges to hold more criminal defendants in jail pending trial:

An early report in March by Kelsi Loos in the Frederick News-Post found that since October the share of Maryland defendants held without bail had increased from 10% to 14%. The Washington Post later reported that from September 2016 to May the figure had jumped from 7% to 15%.

Meanwhile, fewer released defendants are showing up for trial. The Post, confirming anecdotal reports, writes that the “failure to appear” rate in January was 14.5%, up five points from October. Failing to show up for court sets up a defendant for more-severe consequences down the road, which can include being held without bail.

At their core, principles of organizational independence teach that decisions have a wide range of ripple effects on all aspects of the organization.  As Olson notes, it is too early to say whether Maryland’s numbers reflect causation, statistical noise, or something in between.  But there should be little surprise that the decision to limit bail options, without providing other formal mechanisms to deal with moderate-level offenders, would lead to some noticeable changes in the way the system operates.

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