• Jenna Holmes

Maryland Bail Reform Up in the Air


In February 2017 Maryland’s highest court unanimously approved Rule 4-216.1. This rule provides guidance to judges regarding pre-trial release of arrested individuals. The aim of this rule is to end the practice of holding individuals awaiting trial in jail simply because they cannot afford bail. Yet, likely due to the bail bondsmen’s large lobbying presence, Maryland’s Senate passed a bill on March 22, 2017 to stifle the key parts of the Court of Appeals’ rule change.

The Court of Appeals’ rule did not abolish money bail, however it instructed judges to look first to other means of ensuring a defendant appears for trial. The rule seemed to satisfy both sides. The bondsmen, represented by Nicholas J. Wachinski, liked that the rule left money bail on the table, leaving it up to the judge’s discretion when money bail should be used. The judge’s decision of whether to release the defendant on personal recognizance, with some sort of special conditions, or to hold the defendant on bail would be based upon “the recommendation of any pretrial release services program that has made a risk assessment of the defendant in accordance with a validated risk assessment tool.” Whatever decision the judge makes, that decision would need to be the “least onerous” condition to ensure the defendant’s appearance in court and the safety to all involved.

The Court of Appeals largely based their rule on the recommendations of Maryland Attorney General Brian E. Frosh. His guidelines show that Maryland is not looking to release all criminal defendants without money bail, but to assess who is truly a flight risk and/or a danger to the community. The current rule just passed by the Court of Appeals does not indicate how much weight should be given to any one factor, but heavily relies on a pretrial release program’s recommendation based on a validated risk assessment tool. Based on the language, it would seem that this tool would still need to be developed, but would likely include factors such as the offense charged; the defendant’s past record of court appearance; the defendant’s family ties, employment status, finances, reputation, and length of residence in the community. Usually when a judge determines if a person is eligible for a nominal bail, then that judge has already determined the defendant is not a flight risk and/or a threat to public safety. Frosh warned the judiciary that the old way of setting bail has “hundreds of low risk individuals…detained each day in Maryland jails because they are poor and unable to make bail while high-risk defendants are able to post bail, released, and free to commit violent crimes. Not only is this unfair and unsafe, it may also be unconstitutional.”

There are several ways that the Court of Appeals of Maryland could find money bail in certain circumstances to be unconstitutional. First, under both the federal and Maryland Constitutions a criminal defendant has a due process right to an individualized consideration of his or her financial resources before a financial condition of release can be imposed. This argument rests on prior cases that have ruled in matters where an indigent defendant cannot afford to pay a fine, other means of punishment must be considered. Even the Department of Justice has authored an amicus brief stating that defendants who have not been found guilty have an especially "strong interest in liberty." Because of that liberty interest, pretrial release should be the norm, and pretrial detention "the carefully limited exception." The second line of reasoning that money bail can be unconstitutional is based upon the Eighth Amendment. “Where the judicial officer has determined that pretrial detention is not warranted, the imposition of bail or other financial condition of release that a defendant cannot pay …may be found to be excessive under the Eighth Amendment to the U.S. Constitution and Article 25 of the Maryland Declaration of Rights.” The Eighth amendment states that excessive bail shall not be required, and the Supreme Court in Stack v. Boyle, 342 U.S. 1(1951), stated “that the Eighth Amendment requires that a judicial officer consider the financial ability of the defendant to give bail when deciding the financial terms of release.” No matter which argument one believes is more compelling, it is clear that setting bail either without considering the individual circumstances of the particular defendant or the least amount necessary to compel a defendant’s presence in court would violate the Constitution. The government does have an interest in protecting the public, and that interest can outweigh an individual’s liberty, but this interest must be “compelling and legitimate” so as to restrict one’s liberty before trial and a finding of guilt has been determined.

Additionally, Frosh points out the cost associated with a money bail system: “It is estimated that pretrial detention costs Maryland somewhere between $83 and $153 a day for each of the 7,000 plus people who are detained in jail awaiting trial…[costing] state and local correctional agencies … $500,000 to $1,000,000 a day on pretrial detention.” While these numbers alone are staggering to think about, the alternative puts it into perspective: “supervision outside of jail is 10x cheaper than detaining a person until trial.” Frosh also relied on references to other states’ success with alternative bail systems. For example, Frosh noted in Washington, D.C. 90% of defendants appear for trial without being rearrested prior to their case being resolved. Washington, D.C. relies on supervised pretrial release as opposed to money bail. Both Colorado and Kentucky have seen improvements in court appearance statistics after implementing a risk-assessment tool. Already certain counties in Maryland, St. Mary’s and Montgomery, are seeing great success by using pretrial services “in a smart way,” says Frosh. These counties are using a “validated risk assessment tool” for every defendant. This has “ultimately protect[ed] the public, increase[d] the likelihood that defendants show up for trial, and minimize[d] the detrimental impacts of pretrial detention and cost to tax-payers.”

The judiciary rule is set to go into effect in July 2017, however the Senate passed a bill that would eliminate the part of the judiciary’s rule that deemphasized money bonds when looking to release a defendant pre-trial. The Senate was likely swayed by the large amounts of money that the bondsmen industry has thrown at legislators in the forms of campaign contributions and lavish $20,000 dinners for the House of Delegates Judiciary Committee over the past four years. The bail bond industry is nationally a $2 billion industry, so it is clear why they oppose bail reform, but this industry is costing people their liberty. When you put bail reform to the balancing test, the two choices are between the profit margins of the bail bondsmen and the constitutionally protected liberty rights of criminal defendants who have not been found guilty of a crime yet. This industry is focused on their bottom line, not on the disproportionate affect money bonds have on the poor and minority defendants. Additionally, pretrial services provide a critical link for these defendants to much needed services, such as alcohol and drug treatment, supervision, and housing.

There is still hope though. The companion bill in the House, sponsored by Democratic Del. Curt Anderson of Baltimore, has withdrawn his legislation. It remains to be seen what the fate of the judiciary rule crushing bill will be. However, the Legislative Black Caucus has previously voted to take no action affecting the bail rule this year.

Let’s hope the Maryland legislature retains the essence of the Court of Appeals’ rule. Bail reform is sorely needed in Maryland, and makes not only fiscal sense, but also provides fairness and does not discriminate based on one’s inability to pay. The courts have many options at their disposal, aside from money bail, to assure a defendant’s appearance at trail: pretrial supervision, electronic monitoring, drug counseling, Alcoholics Anonymous, and other services that help defendants in critical ways to assure their success in the community and not allowing them to languish in jail based only on their economic ability to post bail. A pretrial services officer would be able to connect defendants to services needed as applicable to their release. The defendant and the community at large benefit from pretrial release with individualized services put in place based on each defendant’s particular circumstances because it has been shown that court-ordered supervision is the most effective means of ensuring both court appearance and public safety, the goals of bail. Additionally, the money bail system in and of itself perpetuates a life of incarceration and poverty for low-income people. The mere presence of money bail increases the likelihood a defendant is found guilty by 12% and increases recidivism by 6-9%. It is about time to change a system that runs counterintuitive to our overall sense of justice because it is taking low-risk defendants and turning them into perpetual criminals simply because they cannot afford to pay bail, while all at the same time not increasing court appearance rates. The only people being injured by the new rule are the bondsmen who have made a lucrative industry on the backs of poor defendants, yet likely it is the bail bondsmen industry that will prevail based on their ability to lobby congressmen with their lavish funds. One can only hope that justice and the Constitution will prevail to save the liberty of poor, low-risk defendants.

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