Judiciary’s bail-reform rule dodges legislative bullet

Having dodged a legislative bullet aimed at preserving the status quo, a Maryland Judiciary rule will go into effect July 1 calling on district court commissioners and judges to prefer alternatives to bail when imposing conditions of release on defendants to ensure their appearance at trial.

The rule was spurred by concerns that a system tying release from custody to a financial payment denies due process to presumed-innocent defendants who lack the funds to pay. Supporters of the system countered that judicial officers must have discretion to assess bail if they believe it to be the most appropriate way to ensure trial attendance.

In the end, Senate Bill 983 died in the House Judiciary Committee, chaired, ironically, by a leading advocate of the bail system.

Del. Joseph F. Vallario Jr. has conceded defeat – at least for now.

The Prince George’s County Democrat said Thursday that he plans to hold hearings this fall – prior to the 2018 General Assembly session – on the Judiciary’s rule and how effectively it has protected defendants’ due-process rights while ensuring  they show  up for trial.

“We’ll wait and see” how effective the rule is, added Vallario, a criminal-defense attorney. “We’ll take the wait-and-see doctrine. That’s all we can do at this point.”

Vallario said the debate between the rule and the legislation grew heated, with what he called erroneous accusations that his support for the bill was based more on donations from the bail-bond industry than on a belief in sound public policy.

“You’ve got to just do the right thing,” Vallario said in rebutting the accusations. “I’m not in favor of anything that hampers judicial discretion. I practice in that field and I know what it’s about.”

‘Partner, not adversary’

But Del. Erek L. Barron, who helped lead the fight against SB 983, said the General Assembly did the right thing by permitting the Judiciary’s rule to go into effect.

“The Judiciary took the responsibility and went through a very long and thoughtful rulemaking process and came up with a very comprehensive decisional framework to ensure that pretrial decisions are made in a constitutional manner and fairly,” said Barron, D-Prince George’s. “I think it’s important for the legislature to act as a partner with the Judiciary, not as an adversary.”

Maryland Attorney Brian E. Frosh set the Judiciary’s rulemaking process in motion last fall with a letter to legislators saying that judicial officers likely violate the constitutional rights of indigent defendants in assessing unaffordable bail. Frosh, in a statement this week, hailed the defeat of SB 983.

“I am pleased the members of the General Assembly chose to reject attempts to undermine the rule recently adopted by the Court of Appeals, ensuring defendants are not detained solely because they are unable to afford bail,” Frosh said.

The rule calls on judicial officers to first consider alternatives to bail, such as requiring released defendants to wear ankle bracelets with homing devices or meet frequently with court officers. Supporters of SB 983, including the bail-bonds industry, said many presumed-innocent defendants may regard wearing an ankle bracelet to be a greater deprivation of liberty than being assessed an expensive bail.

“While the industry supported this bill because this bill brought to the forefront the cost of not only bail but bail alternatives as well, we are disappointed that the full General Assembly was not able to debate this issue,” said Nicholas J. Wachinski, CEO of Lexington National Insurance Corp. in Lutherville, who serves as a spokesman for the industry.

“There are going to be costs thrust upon indigent Marylanders,” he said. “There will be a resulting jail crowding issue. There will continue to be fairness issues under the court rule, and when I say fairness I am talking about impact on racial minorities and indigent Marylanders.”

Wachinski added that the “the industry intends to continue to serve Maryland as it has over the past several decades and we look forward to working together with all criminal-justice stakeholders to preserve public safety and improve fairness in the future.”