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Constitutional concerns will spur bail reform efforts in General Assembly


(Illustration by Maximilian Franz)

Maryland lawmakers plan to introduce legislation this coming session requiring judges to assess bail on defendants only as a last resort to ensure their appearance at trial and only in an amount they can afford.

The lawmakers’ concerns have been sparked by reports that judges have imposed bail on defendants beyond their financial means.

Bail-reform legislation is needed “to make it clear that the court needs to go through a process” of determining the financial status of the individual defendant before assessing bail, said Del. Kathleen M. Dumais, vice-chair of the House Judiciary Committee. “The priority is that financial bail is the last consideration, not the first.”

The coming initiatives come amid Attorney General Brian E. Frosh’s conclusion that the imposition of impossible-to-pay bail essentially consigns defendants to jail before trial in violation of constitutional guarantees of due process and prohibitions on excessive punishment.

The Maryland Court of Appeals, the state’s top court, will vote on a rule next month making clear that judges must examine the financial status of the individual defendant before assessing a bail designed not to bankrupt him or her but to ensure they do not flee upon being released from custody prior to trial.

Frosh told the state Judiciary’s Standing Committee on Rules of Practice and Procedure last month that the imposition of exorbitant bail is “a serious problem in Maryland’s pre-trial system.”

“People shouldn’t be held in jail just because they’re poor,” he said.

Frosh added that bail is not and should never be available for defendants who would pose a public-safety threat if released pretrial, saying that judges should “lock ‘em up.”

Important protections

‘My reputation precedes me,’ says House Judiciary Chairman Joseph F. Vallario Jr., ‘but I’m getting soft in my old age.’ (File photo)

Del. Joseph F. Vallario Jr., who chairs the House Judiciary Committee, says bail provides a constitutional middle ground that permits judges leverage to compel defendants to return for trial or remain in jail if they cannot post bond. ‘How can you hold people on mere allegations’ of guilt? he asked. ‘I’m not in favor of getting rid of bonds.’ (File photo)

But Del. Joseph F. Vallario Jr., who chairs the House Judiciary Committee, said he is wary of changing the bail system, which he said protects the constitutional rights of defendants.

Specifically, Vallario called it a violation of due process for courts to hold defendants in jail prior to trial because they are presumed innocent. Bail provides a constitutional middle ground that permits judges leverage to compel defendants to return for trial or remain in jail if they cannot post bond, added Vallario, D-Prince George’s.

“How can you hold people on mere allegations” of guilt? he asked. “I’m not in favor of getting rid of bonds.”

Vallario added that Maryland’s bail system has a two-step procedural safeguard of an initial appearance before a district court commissioner followed by a bail-review hearing before a judge. Defendants have a constitutional right to counsel at both appearances.

Baltimore County State’s Attorney Scott D. Shellenberger also is leery of reform efforts, saying bail serves the important function of securing the attendance at trial of defendants who might otherwise flee if mistakenly released by a judicial officer on their own recognizance.

Requiring a defendant to post bond for pretrial release means the bondsmen or family members who helped with the payment will ensure his or her return for trial, Shellenberger said.

“Folks are trying to fix a system that I don’t think is broken” across the state, Shellenberger said.

Shellenberger acknowledged calls for bail reform by the rules committee and Frosh, as well as a recent letter from Maryland District Court Chief Judge John P. Morrissey to commissioners and judges referencing those calls, have “certainly created the atmosphere that there needs to be a change” in the administration of bail. But these quickly considered changes are not necessarily for the better, he said.

Releasing defendants of their own recognizance “seems to be the number one choice” now, often without sufficient consideration of their likelihood to flee, Shellenberger said. “Some folks are now getting out who previously were not getting out,” he added.

Risk assessment

Dumais, D-Montgomery, said she will also re-introduce legislation this session to provide computerized assistance to judicial officers in deciding whether to release, assess bail or remand to custody defendants prior to trial. The computerized questionnaire assesses a defendant’s risk of flight or danger to society if released.

A similar proposal for “validated risk assessment tools” died in legislative committee in 2014 amid concerns that computers would be replacing judges in making pretrial-release decisions.

Dumais said the tool would be used to assist – not replace – judges in assessing defendants.

“I never thought it (the tool) should be a determinative factor,” she added.

The tool, in use in other states, would be implemented only with assurances that “it is in fact race neutral and does not negatively impact minorities,” Dumais said.

Vallario, who voiced strong objections to such a tool in 2014, said he could support the computerized program so long as judges are deeply involved in and make the final decision on pretrial release.

“We don’t want people other than judges making a decision on releasing,” Vallario said. “We don’t want the judges passing the buck. It’s the judges’ responsibility to make determinations on reasonable bond to ensure the person’s appearance.”

Stepping in

Past efforts at bail reform have run into strong opposition from bail bondsmen, a strong lobbying group in Annapolis, and most of the state’s chief county prosecutors. This year, however, the Judiciary has stepped in with its pending rule before the high court, and Frosh wrote an advisory letter to legislators about his concern about the constitutionality of exorbitant bail.

Del. Erek Barron.

Del. Erek Barron.

Del. Erek L. Barron, who is working with Dumais on reform legislation, was not yet in the General Assembly for that last battle over bail reform in 2014, which he called “the benefit of being a first-term delegate.”

“I’m not encumbered by the challenges of the past,” said Barron, D-Prince George’s. “The lion’s share of the work has been done.”

He added the involvement of the Judiciary and the attorney general has helped the cause of bail reform in Maryland.

“We’ve already come much further than we already have in the past and that’s a beautiful thing,” Barron said.

Other issues

Criminal-justice and police reform will also be a focus of legislative efforts during the 2017 General Assembly session. Look for legislation in the following areas:

Assisting released convicts in re-entering society. A state panel on eliminating employment barriers for former prisoners will call on the General Assembly to provide tax credits for employers who hire people with criminal records and increase funding for job-training programs for ex-convicts. The Workgroup on Collateral Consequences of Convictions will also urge the legislature to repeal blanket bans on licensing ex-convicts for jobs requiring state licensure. Instead, licensing boards should have full discretion to issue licenses on a case-by-case basis, including for “positions of trust,” jobs that involve the handling of money or work in another person’s home, the panel said.

Protecting juvenile offenders in the prison system. The shackling and strip searching of juvenile offenders have drawn scorn from civil-rights advocates who continue to search for a legislative remedy.

Ensuring compliance with the U.S. Department of Justice. DOJ has concluded the Baltimore Police Department has engaged in a pattern or practice of violating the civil rights of minority residents, particularly blacks, and has called for reform in law enforcement’s activities, particularly with regard to constitutionally suspect searches and seizures. Police-reform efforts – a leading topic in recent years – will return to the General Assembly this session as a result of DOJ’s findings.

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