Fight over cash bail is about to heat up in Maryland

Ahead of a key meeting Friday to propose changes in the state’s cash-bail system, some judges in Maryland have cut back significantly on setting bail for defendants, according to one of the state’s leading bail bondsmen.

Richard Jones, who owns East Coast Bail Bonds in Frederick, said business has dropped nearly 75 percent since District Court Chief Judge John Morrissey advised judges and commissioners last month to impose the “least onerous” conditions on defendants who cannot be released on their own recognizance.

Morrissey was reacting to a recent opinion from state Attorney General Brian Frosh (D) that cash bail could be discriminatory and unconstitutional.

“They are just letting everybody go,” said Jones, who is part of a powerful lobby that has thwarted past legislative efforts to reduce the prevalence of cash bail. On the first weekend following Morrissey’s advice in October, Jones had eight bonds over three days. Normally, he said, he would have about 70 bonds during that period.

Prosecutors and defense lawyers said they do not think the change has been quite so drastic, although they agreed that judges are releasing more poor defendants – including some who prosecutors consider a flight risk. Judges also are taking more time to explain their decisions, Baltimore County State’s Attorney Scott Shellenberger said.

The head of the state’s Office of the Public Defender, Paul DeWolfe, who supports a major overhaul of the bail system, called the reduced use of bail “a step in the right direction.”

It is happening as the rules committee for the Maryland Court of Appeals weighs whether to alter the state’s existing bail policies, and amid pushback from those who support the cash-bail system and those who think changes should be channeled through the state legislature.

The merits of money bail have been under scrutiny for decades, with critics saying poor defendants should not have to remain in jail for months before trial simply because they can’t make bail, while those who can pay go free.

Lawmakers and advocates have been pushing for changes, part of a broader effort aimed at shrinking prison and jail costs and reversing racially biased sentencing practices.

Attorney General Loretta Lynch describes bail revision as a key element in addressing what she called a two-tiered judicial system that treats poor people and minorities differently.

“Thousands of nonviolent, non-felony defendants languish behind bars, not because they have been found guilty of a crime or pose a flight risk but simply because they cannot pay,” she told an audience of judges, lawyers and law clerks in a speech Tuesday at the U.S. District Court in Washington.

Lynch said criminal-justice reforms must continue under the administration of President-elect Donald Trump, who during his campaign emphasized “law and order” over individual civil rights and touted more aggressive anti-crime techniques, such as “stop and frisk.”

According to a 2014 report by the Commission to Reform Maryland’s Pretrial System, about 7,000 to 7,500 defendants are in jail awaiting trial on any given day.

Lawmakers pushing for pretrial reform in the state often cite the District of Columbia system, in which judges release most defendants without requiring them to leave any money behind. Suspects must promise to return to court and, often, agree to drug testing or to check in with a pretrial officer. Those deemed too dangerous to release are held without bond.

Shellenberger, a conservative Democrat, said that he is “not opposed to bail reform” but feels “there is a place for bail in our system. I believe that certain defendants show up because their family has what I call skin in the game.”

Since Morrissey issued his letter to judges and commissioners last month, Shellenberger said, he has seen a number of “questionable” no-bail releases of suspects, including a defendant who was charged with a handgun violation and who gave a post office box in Kentucky as his address.

“There’s concern from a public safety point of view but also from a failure-to-appear-rate point of view,” Shellenberger said.

On Friday, the Standing Committee on Rules of Practice and Procedures of the Maryland Court of Appeals will hold a hearing on pretrial reform and is expected to recommend possible changes for the court to consider.

Retired judge Alan N. Wilner, who chairs the rules committee, said in a memo to his colleagues that “most independent studies nationwide have found the reliance on money bail set at levels that the defendant cannot afford to be irrational, unnecessary, racially and ethnically discriminatory, and fiscally unsound.”

He also noted that “some judicial officers, some legislators, some law enforcement personnel and, unsurprisingly, the great majority of bail bond companies” oppose any change.

Frosh’s office issued its opinion last month after five state lawmakers asked whether setting bail, without considering whether a defendant can afford to pay, violates the equal protection and due process clauses of the 14th Amendment.

Those lawmakers plan to introduce bills outlawing cash bail during the upcoming legislative session, which starts in January. But Frosh suggested that the rules committee consider overhauling the system without legislation – an idea opposed by some at the State House.

Senate President Thomas Mike Miller Jr., D-Calvert, and Sen. Robert Zirkin, D-Baltimore County, the chairman of the Senate Judicial Proceedings Committee, recently sent a letter to the rules committee in which they urged it to leave any changes in the hands of lawmakers.

“I believe we need some type of reform, but this is an inappropriate forum for this,” Zirkin said, saying that the General Assembly is better suited to discuss the budget ramifications of any changes. “It just sets a bad precedent.”

Maryland’s approximately 150 bail bondsmen – who make their money by helping defendants make bail and then keeping a percentage of what is paid – say they will fight to preserve at least some forms of the practice, which they say is important for public safety.

Gerald Evans, a lobbyist who represents the bail bondsmen, said they oppose any effort by the judiciary to adopt its own changes. He accused Frosh, who pushed for bail reform when he was a state senator, of trying to circumvent the legislative process.

Tyler Mann, a defense lawyer in Baltimore, said regardless of how it happens, an overhaul is needed. Too often, he said, innocent defendants who can’t afford bail choose to plead guilty after months behind bars, so they can be released for time served and not have to await trial.

“They are literally being held hostage until they take the plea and admit guilt,” Mann said. “The system as a whole needs to be overhauled.”

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