Frosh ques­tions le­gal­ity of set­ting ex­pen­sive bail

He says if de­fen­dant can’t af­ford a high amount, it’s likely un­con­sti­tu­tional

Baltimore Sun - - NEWS - By Michael Dresser and Justin Fenton Bal­ti­more Sun re­porter Erin Cox contributed to this ar­ti­cle. mdresser@balt­ jfen­ton@balt­

Maryland’s top le­gal of­fi­cer has con­cluded that the state’s sys­tem of hold­ing de­fen­dants in jail be­cause they can’t af­ford to pay cash bail likely would be found un­con­sti­tu­tional.

In a let­ter sent Tues­day to five House of Del­e­gates mem­bers who sought his opin­ion, At­tor­ney Gen­eral Brian E. Frosh told them that judges and court com­mis­sion­ers must take into ac­count the ac­cused’s abil­ity to pay be­fore set­ting bail. He­said that if bail is out of reach for a de­fen­dant, the courts would find that un­law­ful.

“You can’t im­prison some­one for poverty,” Frosh said in an in­ter­view. “For one guy, $1,000 bail is no big deal. For some­body else, they might not have 100 bucks, much less $1,000.”

The ad­vice let­ter likely will send rip­ples through the state’s court sys­tem, bail bond in­dus­try and lo­cal jails. While it is not bind­ing on the ju­di­ciary, it gives de­fense lawyers through­out the state fresh am­mu­ni­tion when ar­gu­ing for lower bail for their clients.

“We’re go­ing to start us­ing it to­mor­row morn­ing,” said Paul DeWolfe, the state’s chief pub­lic de­fender. “That’s re­ally a game-changer if the ju­di­ciary fol­lows the opin­ion.”

A spokesman for Gov. Larry Ho­gan said the ad­min­is­tra­tion is re­view­ing the opin­ion.

Ti­mothy F. Maloney, an at­tor­ney and for­mer state del­e­gate who sat on a state com­mis­sion on pre­trial de­ten­tion, pre­dicted that the opin­ion will “lead to lead to revo­lu­tion­ary changes in our sys­tem”

“The at­tor­ney gen­eral has very ef­fec­tively laid out the con­sti­tu­tional weak­nesses of our bail sys­tem, and the bail bonds­man is rapidly be­com­ing a di­nosaur in the court­house,” Maloney said.

It is dif­fi­cult to say how many peo­ple could be freed statewide if the ju­di­ciary agrees with Frosh. Crim­i­nal jus­tice re­form ad­vo­cates point to an alarm­ing lack of data about peo­ple in pre­trial de­ten­tion.

How­ever, Robert C. Em­bry Jr., pres­i­dent of the Abell Foun­da­tion, wrote ear­lier this year that in Bal­ti­more alone more than 8,200 de­fen­dants were granted bail but couldn’t af­ford to post it. Most, he wrote, were poor and African-Amer­i­can.

Toni Hol­ness, pub­lic pol­icy coun­sel for the Maryland ACLU, said two-thirds of the state’s jail pop­u­la­tion are be­ing held be­fore trial. She said it’s likely the bail sys­tem re­flects the same racial dis­par­i­ties found in other parts of the crim­i­nal jus­tice sys­tem.

Hol­ness said she hopes the opin­ion leads to stan­dard­ized pre­trial re­lease prac­tices around the state.

“It is ei­ther that you are a dan­ger to so­ci­ety, in which case no amount of money should buy your free­dom, or you are not a dan­ger to so­ci­ety and your in­abil­ity to af­ford bond should not keep you de­tained,” Hol­ness said.

The ad­vice let­ter is not a court rul­ing but, in ef­fect, the at­tor­ney gen­eral’s of­fice’s pre­dic­tion, based on prior court rul­ings, of what the Court of Ap­peals might de­cide if the ques­tion lands in their laps.

Frosh unequiv­o­cally pre­dicted that the court would rule that a ju­di­cial of­fi­cer — that is, a judge or court com­mis­sioner —“maynot im­pose a fi­nan­cial con­di­tion set solely to de­tain the de­fen­dant.”

He con­tended that a de­fen­dant may still be held in jail un­til trial for good rea­sons, such as like­li­hood to flee or to harm oth­ers. But oth­er­wise, he said, the find­ing would be that courts must con­duct an “in­di­vid­u­al­ized in­quiry” into the de­fen­dant’s abil­ity to pay and set bail no higher than the per­son can af­ford.

The state’s high­est court likely would find that ex­ces­sive bail vi­o­lates the Eight Amend­ment to the U.S. Con­sti­tu­tion and the Maryland Dec­la­ra­tion of Rights, Frosh con­tended.

Maloney said he thinks the state Court of Ap­peals will have to take up the is­sue and ad­dress the con­sti­tu­tion­al­ity of the state’s pre­trial sys­tem.

“I do not think the Maryland bail sys­tem could sur­vive con­sti­tu­tional scru­tiny,” he said.

Frosh’s let­ter comes amid a na­tional de­bate on whether cash bail sys­tems are fair or ef­fec­tive. States from Maine to Ari­zona are de­bat­ing aban­don­ing their cur­rent sys­tems. DeWolfe said he’s like to see Maryland go the way of the Dis­trict of Columbia and Ken­tucky and elim­i­nate cash bail en­tirely.

Maryland twice con­vened leg­isla­tive task forces to study the is­sue of cash bail but never reached a con­sen­sus for ma­jor change. One im­por­tant rea­son was the clout of the bail bond in­dus­try, whose mem­bers in­clude gen­er­ous contributors to law­mak­ers.

The Frosh let­ter could have sig­nif­i­cant im­pli­ca­tions for that in­dus­try’s fu­ture if more de­fen­dants are re­leased with­out bail or are able to pay the bond out of their own re­sources. A spokesman for the in­dus­try could not be reached Tues­day night.

The is­sue also is get­ting at­ten­tion at the fed­eral level.

In March, the Depart­ment of Jus­tice launched a pro­gram to re­view the fair­ness of cash bail sys­tems. That ef­fort in­cludes a $2.5 mil­lion grant pro­gram for gov­ern­ments look­ing to re­place them with some­thing else.

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