In its 7-0 vote, the Court of Appeals rejected calls that district court commissioners and judges rely on cash bail only as a last resort to ensure that defendants released from custody before trial show up for court. Instead, the high court said the judicial officers’ “preference” should be to impose non-monetary conditions for ensuring that a defendant shows up for trial, including the potential use of ankle bracelets with homing devices or requiring the defendant to check in frequently with a court officer.
The Court of Appeals’ rule, which goes into effect July 1, amends existing Judiciary standards for setting bail by calling on district court commissioners and judges to assess in each case the amount the specific defendants can afford to pay in bail while ensuring that he or she shows up for trial.
The rule change was spurred by Maryland Attorney General Brian E. Frosh’s letter to legislators last fall expressing concern that a judicial officers’ imposition of bail beyond low-income defendants’ financial means essentially consigns them to jail before trial in violation of constitutional guarantees of due process and prohibitions on excessive punishment.
Frosh, in a Facebook post Tuesday afternoon, called the high court’s adoption of the rule a “huge win for justice in Maryland.”
Chief Maryland Public Defender Paul B. DeWolfe hailed the high court’s rule that judicial officers consider each defendant’s finances and to prefer options other than bail. The rule “will assure that individuals in Maryland will not be held pretrial because they’re poor,” DeWolfe said, adding that detention based on poverty is unconstitutional.
“It’s a good day,” DeWolfe said.
Nicholas J. Wachinski, who heads a bail-bonds insurer, said the high court’s rule preserves the discretion of commissioners and judges to assess bail as a way to ensure a defendant shows up for trial.
“Judges should be permitted to use all the tools, including bail,” said Wachinski, chief executive officer of Lexington National Insurance Corp. in Lutherville.
The high court’s adoption of the rule followed five hours of public testimony on Jan. 5 followed by three hours of often-stalemated public discussion among the seven judges, including two hours on Tuesday afternoon.
Breaking the logjam
Judge Shirley M. Watts broke the logjam by proposing that cash bail not be viewed as a last resort, as suggested by the Judiciary’s rules committee, but included among the options commissioners and judges have for ensuring a released defendant show up for trial.
The Standing Committee on Rules of Practice and Procedure had included bail last on a list of pretrial options in its proposal to the high court.
Watts decried the list as a “pecking order” that would have largely stripped judicial officers of discretion to view bail as “the least onerous” pretrial option for specific defendants. A defendant, for example, might view bail as a less restrictive option than wearing an ankle bracelet.
Alan M. Wilner, who chairs the Standing Committee on Rules of Practice and Procedure, defended his panel’s suggestion of bail as a last resort.
“Don’t make people buy their way out of jail,” Wilner told the high court. “This isn’t a Monopoly game.”
Bail should not be imposed “unless there is nothing else,” he added.
But Watts said bail should remain an option for judges so long as it is not assessed beyond a defendant’s financial means.
“I’m simply trying to give the judicial officer a degree of flexibility,” Watts said.
Judge Robert N. McDonald then proposed additional language stating that the preference should be that judicial officers assess a non-financial means of ensuring defendants show up for trial.
The court subsequently adopted Watts’ proposal with McDonald’s modification.
The high court’s action comes as legislators plan to sponsor bail-reform legislation this session, including a measure to codify the Judiciary’s rule and another bill that would prohibit cash bail.
Del. David Moon, D-Montgomery and chief sponsor of the prohibition measure, has called his long-shot legislation “aspirational” but important to the discussion of whether bail should be continued in Maryland.