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Senate gives preliminary approval to bill undoing Judiciary’s bail reform

ANNAPOLIS – The Senate on Tuesday gave preliminary approval to legislation that would block a pending Maryland Judiciary bail-reform rule by lifting its requirement that judicial officers give preference to non-financial conditions for a defendant’s pretrial release.

The Senate’s preliminary voice vote followed its rejection of an amendment that would have killed the bill and sought to codify the Judiciary’s rule, slated to go into effect July 1.

The 27-9 vote against Sen. Joan Carter Conway’s amendment essentially clears the way for Senate Bill 983’s expected passage later this week. Senate approval would send the bill to the House of Delegates, where its fate is less certain.

Sen. Robert A. “Bobby” Zirkin, who chairs the Senate Judicial Proceedings Committee, said the legislation importantly would preserve judicial officers’ discretion to set the conditions they see fit – be it bail or non-financial –  to ensure that defendants show up for trial.

Imposing a legislative or regulatory preference for or against bail, as the rule would do, undermines “the crux of judicial discretion,” Zirkin, D-Baltimore County, said during the Senate’s floor debate Tuesday.

SB 983 is in response to the Judiciary’s rule that will – in the absence of a superseding law – require district court commissioners and judges to prefer imposing other pretrial conditions on defendants before considering bail. These preferred options would include requiring defendants to wear ankle bracelets with homing devices, report periodically to a court officer or be subjected to drug tests.

The Judiciary’s rule was spurred by Attorney General Brian E. Frosh’s advisory letter to legislators last fall that judicial officers likely violate the due-process rights of defendants, as well as their privilege against excessive punishment, in assessing bail in excess of what they can afford. Such impossible-to-afford assessments essentially remand these defendants to custody simply because they are too poor, Frosh stated in the letter.

Sen. William C. “Bill” Ferguson, D-Baltimore City, echoed Frosh’s concern Tuesday in speaking against the bill and in favor of his ultimately unsuccessful amendment calling on judicial officers to show a preference for non-financial conditions.

“We shouldn’t put a price on liberty,” Ferguson told his colleagues. “There should not be a price for your liberty when you haven’t been convicted of a crime.”

But Zirkin said that sentiment sounds laudable but can – and often does – result in judicial officers remanding defendants to jail without offering the option of bail out of concern, borne of the pending rule, that the appropriate financial assessment would be considered unconstitutionally excessive.

Approving Ferguson’s amendment would be “cutting out the guts of the bill” by reducing judicial discretion to assess bail, Zirkin said before the Senate rejected the proposed change.

Conway, D-Baltimore City, then introduced her ill-fated amendment to codify the Judiciary’s rule.

Zirkin said that amendment would kill the bill directly, whereas Ferguson’s proposal would have done so indirectly.

“That’s right,” Conway said just moments before the Senate’s vote.

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