MARYLAND ATTORNEY GENERAL Brian E. Frosh (D) got the ball rolling for bail reform with a legal opinion that challenged the constitutionality of a system in which a defendant’s bank account determines whether they are jailed before trial. The state’s highest court took the next step with a landmark change in rules that requires judges to first look at other ways to ensure a defendant appears for trial. It is now up to Gov. Larry Hogan (R) and the General Assembly to do their part by putting in place the resources needed to strengthen pretrial services throughout the state.
The seven-member Court of Appeals voted unanimously this month to overhaul the bail system by requiring judges to impose the “least onerous” pretrial conditions for defendants who are not seen to be a danger to the community or a serious flight risk. The change in procedure, which will take effect July 1, doesn’t abolish cash bail, but for the first time it requires judges to take into account a defendant’s ability to pay bail or post a bond. The change is rooted in the common-sense principle that decisions about who should be incarcerated as they await trial should be based on whether they pose a risk. It is modeled on the success of other jurisdictions, including the District, that have moved away from cash bail.
There is growing national recognition of the inequities inherent in cash bail. Poor people, many of them minorities, are most harmed when, unable to afford even modest bail amounts for low-level offenses, they are locked up for extended periods of time. Often that leads to lost jobs and broken families — even in instances in which it turns out there was no merit to the original charges. Then there is the fact that locking up people who don’t pose a danger and can meet conditions that ensure they show up for trial is enormously expensive and inefficient. Consider, Court of Appeals Judge Alan Wilner told the Baltimore Sun, how St. Mary’s County spent $200,000 to implement a pretrial services program in 2015 and saved $400,000 in the first year.
The rule change approved by the court can’t be appealed, but lawmakers could pass legislation overturning it, something that unfortunately can’t be ruled out given the clout the bail bond industry has traditionally wielded. Action in Annapolis is needed, but it should be devoted to ensuring that pretrial service programs, including use of evidence-based assessment tools, are implemented and funded throughout the state. We urge the governor and legislature to follow the lead of the Court of Appeals and make the additional changes needed to bring real fairness to the justice system.
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