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Baltimore County State’s Attorney Scott Shellenberger says the General Assembly will never vote to end cash bail. Given the strength of the bail-bond industry, he says, the commission bought itself ‘the biggest obstacle that you can have in the legislature.’ (The Daily Record/Maximilian Franz)

Pretrial commission will recommend ending bail bonds

With passage uncertain, group also urges study of cash bail’s impact

ANNAPOLIS — Maryland should end its system of requiring people to post bond as a condition of being released from custody before trial, a state commission on pretrial reform will recommend to the General Assembly in the next few weeks.

The Governor’s Commission to Reform Maryland’s Pretrial System approved the controversial recommendation Tuesday afternoon, saying the state’s bail system is inherently unfair. Low income defendants are too often held in custody pending trial due to their inability to pay, while wealthier defendants are released because they can foot the bill.

“The use of secured, financial conditions of pretrial release (cash, property, or surety bond) that require a low risk defendant to pay some amount of money in order to obtain release, while permitting high-risk defendants with the resources to pay their bonds to leave jail unsupervised, [should] be completely eliminated,” the recommendation states.

The recommendation will be part of the commission’s report, due Dec. 1 to the governor and General Assembly, on ways Maryland can improve the treatment of criminal suspects between arrest and trial.

Maryland Public Defender Paul B. DeWolfe and defense attorney Michael Schatzow pressed their fellow commissioners to adopt the recommendation, which many panel members said has no chance of passage in the General Assembly due to the strong bail bonds lobby.

“If you don’t have money, you stay in jail,” DeWolfe said. “Those that don’t have money stay in jail no matter how low the bonds are.”

Schatzow said the bail system is “applied so irrationally,” as a wealthy person arrested for a serious crime can post bond and leave while an indigent individual nabbed for a minor offense must go to jail.

“We have the wrong people in and the wrong people out,” said Schatzow, of Venable LLP in Baltimore.

But Baltimore County State’s Attorney Scott D. Shellenberger said the General Assembly would never pass legislation ending the bail system.

The commission “bought yourself the biggest obstacle that you can have in the legislature,” Shellenberger said, referring to the strength of the bail-bond lobby.

“Let’s be practical,” he added. “We have to bow to the practical realities.”

The commission, recognizing that the legislature likely will not abolish bail, also approved a milder recommendation calling on lawmakers to monitor cash bail and its associated impact “to determine if changes need to be developed and implemented.”

Another commission member, Sen. Christopher B. Shank, R-Washington, said the latter recommendation will be better received in the General Assembly.

“It moves the ball forward,’ Shank said. “We should be looking at bail and possible abuses of the bail system and how it can be improved.”

Gov. Martin O’Malley called for the creation of the 23-member commission in May to examine and improve how the justice system treats arrested criminal suspects prior to trial and instructed members to address the feasibility of implementing an objective risk assessment computer program for use at initial bail hearing.

The commission’s creation followed the Maryland Court of Appeals’ landmark Sept. 25, 2013, decision in DeWolfe v. Richmond that criminal suspects have a state constitutional right to counsel at initial bail hearings before district court commissioners.

Criminal defense attorney Richard M. Karceski, a Towson solo practitioner, chairs the commission.


About Steve Lash

Steve Lash covers federal and Maryland appellate courts and the General Assembly’s judiciary committees for The Daily Record. He joined the newspaper in 2008 after spending nearly 20 years covering the U.S. Supreme Court and legal affairs for several publications, including the Houston Chronicle, Cox Newspapers, Chicago Daily Law Bulletin and West’s Legal News. Lash, a graduate of American University’s Washington College of Law, is a member of the U.S. Supreme Court and Maryland bars.