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Washington Post: Maryland’s highest court overhauls the state’s cash-based bail system

02.10.2017

Maryland’s highest court voted unanimously Tuesday to overhaul the state’s bail policies, essentially abolishing a system in which poor people could languish behind bars for weeks or months before trial because they could not post bond.

The rule change, which takes effect July 1, requires judges to impose the “least onerous” conditions when setting bail for a defendant who is not considered a danger or a flight risk.

That means Maryland will join a handful of states, including New Mexico, Kentucky and New Jersey, that have moved away from bail as part of a larger criminal-justice overhaul movement.

Judges will be required for the first time to consider whether a defendant can afford to make bail before setting their pretrial release conditions. They must also weigh whether defendants pose a risk of committing another crime or of not appearing for their next court date.

The directive approved by the rules committee of the Maryland Court of Appeals says that “preference should be given to additional conditions without financial terms,” court spokesman Kevin Kane said.

Maryland Attorney General Brian E. Frosh (D), who has been pushing for an overhaul of the system, called the rules change a “huge step forward” that will lead to “more justice in Maryland.”

“If you’re poor, you’re not going to be held in jail just because you can’t make bail,” Frosh said. The new rules, he said, tell judges to “keep dangerous people behind bars” and to “let the vast majority who are not a threat out” before trial.

Under the current system, judges often require defendants to leave a certain amount of money with the court in exchange for release in advance of trial. People who cannot make bail on their own or with the help of bail bondsmen — who guarantee payment to the court in exchange for a percentage of the bail amount — remain locked up.

Nationally, about 47 percent of felony defendants who are required to post bond remain jailed before their cases are heard because they cannot come up with the required amount.

In Maryland, more than 46,000 defendants between 2011 and 2015 were detained more than five days at the start of their criminal case, according to a 2016 report by the Maryland Office of the Public Defender. Of those, more than 17,000 were held on less than a $5,000 bail.

A draft version of the rules change posted on the court’s website does not eliminate money bail or bail bondsmen. But it says that judges “may not impose a financial condition, in form or amount, that he or she knows or has reason to believe that the defendant is financially incapable of meeting.”

The District passed a law in the 1990s that also prohibited judges from imposing a “financial condition” that a person could not pay. That law, too, did not explicitly prohibit money bail.

But in practice, it effectively got rid of the bail-bond business in the District.

Bail bondsmen in Maryland have vehemently opposed changing the state’s system, either through the court’s rules committee or through legislation in the State House in Annapolis.

On Tuesday, Vinnie Magliano, president of East Coast Bailbonds, said the court was “moving one million miles an hour in the wrong direction.”

Magliano, a member of the Maryland Bail Bonds Association, said the industry will consider pushing the legislature to roll back the court’s decision. “I’m advocating for sensible reform,” he said. “I think this goes too far.”

Doug Mayer, a spokesman for Gov. Larry Hogan (R), said the governor’s office had not seen the rules change and could not comment.

In January, the judges heard more than five hours of testimony about the merits of reforming the system, including from former U.S. attorney general Eric H. Holder Jr., and about the benefits of keeping the current policies in place.

Maryland’s legislature has been debating whether to limit or eliminate cash bail for more than a decade, with critics of the current system calling it discriminatory and potentially unconstitutional.

Frosh, a former state senator who had pushed for change in the legislature without success, asked the appeals court late last year to consider changing the directives given to judges as they set bail.