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Md. attorney general pushes for change to bail system to keep defendants from languishing in jail

Maryland Attorney General Brian Frosh. (Jonathan Newton/The Washington Post)

Maryland Attorney General Brian E. Frosh (D) said Monday that his office will submit a letter to the judiciary’s rules committee to make changes to the state’s cash bail system so poor defendants are not held in jail because they can’t afford to make bail.

The decision comes on the heels of an opinion last week that questioned the constitutionality of the current system.

“I think there is a compelling case to changing the rule,” Frosh said.

Several Democratic lawmakers, including Frosh when he served in the General Assembly, have tried for years to change the current cash bail system. They have argued that the system, which sets bails at amounts many defendants can’t afford to pay, is discriminatory and unfair.

Frosh’s office issued an opinion that said that money bail could violate due process.

Md. attorney general’s office raises constitutionality questions about state’s cash bail system

“If pretrial detention is not justified yet bail is set out of reach financially for the defendant,” the opinion said, “it is also likely the Court would declare that the bail is excessive under the Eighth Amendment of the U.S. Constitution,” which prohibits the government from imposing excessive fines or cruel and unusual punishment.

The lawmakers who asked Frosh’s office for the opinion said they plan to push for a legislative remedy. But Frosh said Monday that changes “could be dealt with comprehensively and effectively by the rules committee. It’s not necessary to go through a legislative change.”

Whether the issue is addressed in the legislature or the judiciary, it will have several major hurdles to clear.

Frosh said the Standing Committee on Rules of Practice and Procedure, which considers changes for the judiciary, would have to decide whether to take up Frosh’s request. Then it would have to vote on whether a change should be made. The proposal would then have to be considered by the state Court of Appeals.

In the legislature, a bill last year never made it out of committee. But lawmakers are certain that the attorney general’s opinion will carry the needed weight to move the issue forward in the General Assembly.

Shareese DeLeaver-Churchill, a spokesman for Gov. Larry Hogan (R), said his office continues to review the opinion.

“The issue of bail reform is an important one and has been discussed for many years in Maryland by both the judiciary and the legislature,” DeLeaver-Churchilll said in an email. “We look forward to seeing this debate continue during upcoming legislative session.”

Frosh said the system should be based on a risk-assessment, rather than money. He said data show a change would benefit states and counties, which would save money, and poor defendants, who would no longer face the loss of jobs, homes and families because of long jail stays while awaiting trial.

“What happens now in Maryland courts, people are being jailed for being poor,” he said. “That’s not right and it can be fixed. . . . The system cries out for reform.”