Judges in Maryland would not be able to set bail that is too high for a poor defendant to pay unless the defendant is considered a flight risk or a danger to society, under a rule change that a key judiciary committee voted Friday to recommend to the state’s highest court.
The Standing Committee on Rules of Practice and Procedure of the Maryland Court of Appeals voted 18 to 5 to recommend an overhaul of the state’s money-based bail system, which critics say is unfair to poor and minority defendants.
The public will have 30 days to review the rule change — which is opposed by bail bondsmen, most state prosecutors and some state lawmakers — before it is considered by the Court of Appeals.
“We saw a problem that needed to be fixed,” said retired judge Alan M.Wilner, the chair of the rules committee, after the nearly five-hour hearing. “The impact of setting bail that a person cannot make is irrational. It is not really setting bail — it is putting them in jail, and it has a disparate impact first on poor people, for sure, and on people of color.”
Advocates in Maryland and across the country have been fighting for years to change the bail system, which can leave poor people in jail for months awaiting trial while those charged with similar crimes but who can pay go free.
Among those testifying in favor of a change was Attorney General Brian E. Frosh (D), who asked the rules committee to consider a change after his office issued an opinion that the state’s system probably was unconstitutional, and Prince George’s County State’s Attorney Angela Alsobrooks (D), who broke from most of her colleagues.
“I’m almost ashamed to admit that we have a two-tiered system,” Alsobrooks said. “I have become devastated about the way we have operated our criminal justice system.”
Opponents of limiting cash bail said the state is not equipped to handle such a change and would struggle, for example, to find a way to deal with defendants who do not show up for trial.
As part of an effort to lobby against a change, bail bondsmen have begun disseminating data about the growing number of defendants released on recognizance since last month, when District Court Chief Judge John P. Morrissey advised judges and commissioners to impose the “least onerous” conditions on those awaiting trial.
Frosh said eliminating cash bail for poor defendants would have a major impact.
“People will no longer be sitting in jail waiting for trial because they can’t afford to pay for bail,” he said. “If they are a danger, they should be locked up; if they are not going to show up for trial, they should be locked up. But if they are not a threat to anybody . . . they should not be sitting in jail for weeks or months awaiting trial.”
Del. Joseph F. Vallario Jr. (D-Prince George’s), a member of the rules committee and chairman of the House Judiciary Committee, was one of five people who voted Friday against recommending the change to the Court of Appeals.
Vallario argued that the issue should be handled by the legislature, not the courts, and accused the committee of a “rush to judgment.”
Previous attempts to pass laws reforming the bail system have stalled in the General Assembly, including bills sponsored by Frosh when he was a state senator.
In a letter to the rules committee this week, state Senate President Thomas V. Mike Miller Jr. (D-Calvert) and Sen. Robert A. Zirkin (D-Baltimore County), the chairman of the Senate Judicial Proceedings Committee, also tried to discourage the committee from taking action on the rule change.
Zirkin said in an interview that the court system usually makes rule changes after legislation has been enacted, and he noted that the General Assembly could pass legislation that negates any changes the Court of Appeals makes.
Gerard Evans, a lobbyist for the bail bondsmen, accused Frosh of trying to dodge the legislative process. But Frosh said the action was “completely within the purview of the courts.”
The five Democratic lawmakers who initially sought the attorney general’s opinion — Dels. Kathleen M. Dumais (Montgomery), Erek L. Barron (Prince George’s), Shelly L. Hettleman (Baltimore County), Marc A. Korman (Montgomery) and Brooke E. Lierman (Baltimore City) — say they support a rules change and plan to introduce additional legislation addressing bail and other pretrial issues in the upcoming legislative session.
“This has been legislatively debated, and nothing has happened,” Robert Zarbin, an attorney and a member of the rules committee, said during the hearing. “If we pass this rule, something will happen in Annapolis. This is the best catalyst to get people talking.”