AG’s questioning of bail’s constitutionality not news to defense counsel

Criminal defense attorneys gave a “Casablanca”-like “I’m shocked, shocked” in response to the recent conclusion by the Maryland attorney general’s office that assessing bail beyond a defendant’s financial means likely violates constitutional provisions ensuring due process and prohibiting cruel and unusual punishment.

Such excessive bail is “in fact, no bail” because too-poor defendants have no real choice but to remain in custody prior to trial, said A. Dwight Pettit, a Baltimore solo practitioner.

“We’ve always argued that high bails are unconstitutional,” Pettit said of himself and his fellow defense lawyers. “All they (in the attorney general’s office) have done is reinforce what a lot of defense counsel have put before the court.”

Assistant Attorney General Sandra Benson Brantley, in a letter to inquiring state delegates last week, said legal concerns are raised when a judge or district commissioner orders money bail as a condition of pretrial release without investigating whether the defendant has the means to pay that amount. She predicted that Maryland’s top court, which has yet to address the issue, would strike down as unconstitutional a bail set beyond what a defendant can afford.

“Conditions of pretrial release must … be the least onerous to reasonably ensure the appearance of the defendant as required, protect the safety of the victim, or ensure that  the defendant will not pose a danger to another person or the community,” Brantley wrote. “As a result, setting the bail in an amount not affordable to the defendant, thus effectively denying release, raises a significant risk that the Court of Appeals would find it violates due process.”

In addition, “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 federal Constitution) and Article 25 of the Maryland Declaration of Rights,” which prohibit cruel and unusual punishment, added Brantley, who serves as the General Assembly’s counsel.

Pettit and fellow defense counsel J. Wyndal Gordon said they welcomed Brantley’s letter, though they called it unlikely the Court of Appeals would ever get the opportunity to rule on the constitutionality of excessive bail. By the time the case got to the high court, they said, the defendant would either have been released from jail or convicted, rendering moot the bail challenge.

The importance of Brantley’s letter, therefore, rests mainly in the influence it might have on judges as they consider the amount of bail to assess.

“Our judges need to be more sensitized to the assignment of bail in certain cases,” said Gordon, a Baltimore solo practitioner, adding bail must not be “a substitute for punishment.”

Legislation coming

Del. Erek L. Barron, one of the five delegates who sought the attorney general’s opinion, said he hopes the letter eases the “political logjam” that has preserved a pretrial system that threatens the due process rights of indigent defendants.

Barron added change might have to come via a criminal-defense attorney raising a constitutional challenge rather than from the General Assembly.

“It is potentially a dream pro bono case,” said Barron, D-Prince George’s and a member of the House Health and Government Operations Committee.

But Del. Kathleen M. Dumais, vice chair of the House Judiciary Committee, expressed hope for a legislative solution. She said she plans to introduce legislation during the 2017 General Assembly session that would call for judges and commissioners to inquire into the defendant’s financial means before assessing bail. Dumais called it “just unconscionable” that defendants would be assessed a bail beyond their means.

“I don’t think we have to wait for the courts,” said Dumais, D-Montgomery.

“I understand that it will be difficult” to get a bail-reform bill passed, she added. “(But) it is something that should and must be discussed.”

Besides  Barron and Dumais, the delegates who sought the attorney general’s office’s view are Shelly L. Hettleman, D-Baltimore County; Marc A. Korman, D-Montgomery, and Brooke E. Lierman, D-Baltimore City.