ANNAPOLIS – A liberal Democratic delegate plans to introduce legislation this session to end bail in Maryland, a long-shot measure that has the support of the state’s chief public defender but not of the attorney general.
Del. David Moon said his bill would end the unconstitutional pretrial practice of putting “people in jail oftentimes because they don’t have money.” Judges would retain the authority to remand to custody those defendants whose release from pretrial detention would present a threat to public safety or a certainty they would not return for trial.
Moon’s repeal measure would mark the most radical bail-reform measure expected before the General Assembly this session. Other bills introduced would preserve bail but seek to prevent judges from assessing an amount beyond a defendant’s financial means to pay.
Moon said he has no illusions his controversial measure will become law this year or even next but he wants it to be part of the debate regarding bail reform.
“It’s a pretty aspirational bill,” said Moon, of Montgomery County. “I think it’s important to have this discussion.”
Moon added the pretrial focus should be less on “perpetuating cycles of poverty” by assessing bail and more on providing pretrial services for defendants, such as drug treatment and mental-health services.
Bail-reform efforts received a boost last fall when Maryland Attorney General Brian E. Frosh said the state’s bail system is likely unconstitutional when judges assess amounts beyond what individual defendants can afford. Such impossible-to-pay bail assessments amount to pretrial detention in violation of constitutional guarantees of due process and protection against excessive punishment, Frosh stated in an advisory letter to legislators.
The attorney general and Maryland Public Defender Paul B. DeWolfe have voiced strong support for a proposed Judiciary rule to ensure judges determine what a specific defendant can pay when assessing bail to ensure he or she appears at trial. The Court of Appeals is scheduled to vote Feb. 7 on the proposed rule.
DeWolfe, however, said Tuesday the state should ideally go further and end cash bail.
“People should not be held in jail strictly because they’re poor,” DeWolfe said.
He cited a report his office completed in November, which found that “Maryland’s reliance on a wealth-based pretrial detention scheme causes the incarceration of tens of thousands of people due to their inability to pay bail.”
Requiring defendants to pay for their pretrial release as a way to ensure they appear at trial could be replaced by a promise by the defendants to pay a given amount if they fail to appear, essentially an unsecured bond, DeWolfe said, citing the report.
“Because unsecured bond allows for the release of defendants even if they cannot immediately afford an upfront payment, the broader use of unsecured bond will further the public interest in reducing Maryland’s pretrial jail population,” DeWolfe wrote in “The High Cost of Bail: How Maryland’s Reliance on Money Bail Jails the Poor and Costs the Community Millions.”
“The benefits of unsecured bond extend further still,” DeWolfe wrote. “Unsecured bond(s) do not require the satisfaction of a non-refundable premium. Consequently, the broader use of unsecured bonds will guarantee that hundreds of millions of dollars will remain where it belongs, in the pockets of the Maryland community.”
But Frosh disagrees with DeWolfe’s position on ending bail outright.
“Judges have a broad array of discretion and powers they can use,” short of bail, to ensure a defendant appears at trial, Frosh said Friday in an appearance before Baltimore city’s General Assembly delegation. For example, a judge can order released defendants to wear ankle bracelets with a homing device or require them to report periodically to a court officer, he added.
Nevertheless, judges should have the authority as a “last resort” to assess bail if they believe the payment will dissuade specific defendants from fleeing and ensure their appearance at trial, Frosh said.
Bail should remain “in the toolbox for judges,” the attorney general added. “Judges ought to have discretion.”
The bail-bond industry has expressed strong opposition to reform efforts, saying that alternative measures such as ankle bracelets are themselves punishments that defendants should have the option to avoid via a pretrial payment guaranteeing their appearance at trial.