Maryland’s highest court delays decision on whether to overhaul cash-bail system

The highest court in Maryland delayed action Thursday evening on whether to overhaul the state’s money-based bail system so that most poor defendants do not have to pay bail or are allowed to pay what they can afford.

The Maryland Court of Appeals was considering a rule change that would have directed judges not to set bail higher than what a defendant can afford. A person who is a flight risk or a danger to society would be jailed without bail.

After more than 90 minutes of deliberation, the court decided to delay action on the proposal until next month.

Maryland has been debating whether to limit or eliminate cash bail for more than a decade. Its efforts parallel similar campaigns in New Mexico, Kentucky and New Jersey, where the money-based bail system has been either altered or abolished.

The court heard more than five hours of testimony, including from former U.S. attorney general Eric Holder; state Attorney General Brian E. Frosh, who urged the judges to change the system; bail bondsmen; victims’ rights advocates; and police officers who raised concern about how limiting bail could impact public safety.

Holder told the court that the state’s system is “likely unconstitutional” because it largely jails people based on their ability to post bail.

He called the cash-bail system “fundamentally unjust.”

Frosh, who tried to make changes to the bail system when he served in the Maryland legislature, said the system has left some impoverished suspects detained for weeks and months while they await trial, causing the loss of jobs. In some cases, he said, innocent people have pleaded guilty to minor charges ahead of their trial dates to get out of jail more quickly.

Frosh mentioned Shannan Wise, a Baltimore woman who spent five days in jail because she had trouble coming up with the $1,000 she needed to get out. Wise, who was profiled in The Washington Post last month, was released from jail after several family members scraped together the money to pay her bail. Two months later, the charges against her were dropped.

“She is an example of a very serious problem we have with our pretrial system,” Frosh said. “People should not be held in jail just because they are poor.”

Frosh said the judges had an “opportunity to not only make our system fairer, but to make it more effective.”

Several people who oppose the proposed changes warned the court against moving too quickly.

In November, the Standing Committee on Rules of Practice and Procedure recommended the rules change to the full Court of Appeals. Retired judge Alan M. Wilner, who chairs the rules committee, said the panel began discussing pretrial detention changes almost three years ago.

Court of Appeals Judge Joseph Getty, who previously served with Frosh in the Maryland Senate, raised concerns about the court making a rule change before the General Assembly acts on legislation that would create a statewide pretrial release service program.

“I think we do a disservice voting on this motion today,” Getty said. “I would like some time to follow up and research some of the things that have been said.”

Mark Adams, a bail bondsman, also said the court was acting prematurely.

“This process is moving too quick,” he said. “The data has not been accurate and has not been complete.”

The hearing comes nearly three months since Frosh raised constitutionality questions about the state’s money-based bail system.

Responding to five Democratic state lawmakers, who asked him to weigh in on whether the state was vulnerable to class-action lawsuits similar to those lodged in San Francisco and other cities across the country, Frosh said the system may violate due process.

He added that “if pretrial detention is not justified yet bail is set out of reach financially for the defendant, it is also likely the court would declare that the bail is excessive under the Eighth Amendment of the U.S. Constitution,” which prohibits the government from imposing excessive fines or cruel and unusual punishment.

Lawmakers who support reducing or eliminating cash bail said they planned to use Frosh’s opinion to push for changes during the 2017 session, which begins next week.

In the meantime, District Court Chief Judge John P. Morrissey advised judges and commissioners to impose the “least onerous” conditions on those awaiting trial, and Frosh asked the Court of Appeals to consider a rule change.

The bail bondsmen say their businesses have suffered since Morrissey’s letter. They say fewer bonds put the public at risk, and they are waging a social-media campaign aimed at stopping any sweeping changes to the system.

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