Frosh bail opin­ion could have far-reach­ing ef­fects

Court sys­tem, bail in­dus­try, jails po­ten­tially af­fected

Baltimore Sun - - FRONT PAGE - By Michael Dresser

Jail pop­u­la­tions in Mary­land could fall. Law­mak­ers might have to con­front an is­sue they’ve sidestepped. And the fu­ture of a pow­er­ful in­dus­try could be in doubt.

All are pos­si­ble re­sults of an opin­ion is­sued this week by At­tor­ney Gen­eral Brian E. Frosh, who con­cluded that keep­ing peo­ple in jail be­cause they can’t af­ford bail is prob­a­bly un­con­sti­tu­tional.

The opin­ion, writ­ten in re­sponse to a re­quest by five Demo­cratic del­e­gates, calls into ques­tion the state’s long-stand­ing prac­tice of let­ting courts set high bail as a way of keep­ing some pris­on­ers in jail. If the state’s high­est court were con­fronted with such a case, Frosh warns, it would likely up­end the state’s sys­tem of pre­trial de­ten­tion.

“Ab­so­lutely it’s a big deal,” said Caryn York, se­nior pol­icy ad­vo­cate at the Job Op­por­tu­ni­ties Task Force. “It’s ex­actly what the courts, pol­i­cy­mak­ers and other key stake­hold­ers need to get some­thing done.”

Frosh does not rule out money bail en­tirely, but the opin­ion could weaken some of the in­sti­tu­tion’s foun­da­tions.

He wrote that nei­ther a judge nor a com­mis­sioner may “im­pose a fi­nan­cial con­di­tion solely to de­tain the de­fen­dant.” Brian E. Frosh

He said those court of­fi­cers must im­pose the least oner­ous con­di­tions nec­es­sary to en­sure that a de­fen­dant shows up for trial and to pro­tect vic­tims and pub­lic safety.

The opin­ion did not come as a sur­prise to those who are fa­mil­iar with Frosh’s record in An­napo­lis. As a Demo­cratic state se­na­tor be­fore his elec­tion as at­tor­ney gen­eral in 2014 — he chaired the Se­nate Ju­di­cial Pro­ceed­ings Com­mit­tee for a dozen years — he was a staunch critic of Mary­land’s money bail sys­tem.

But as at­tor­ney gen­eral, his opin­ions could carry greater weight — in the courts, in the Gen­eral Assem­bly and in pub­lic de­bate.

“Pre­ven­tive de­ten­tion is OK, but what’s not OK is for some­body to be in jail be­cause they can’t af­ford to get out,” Frosh said in an in­ter­view.

The opin­ion’s im­por­tance may be de­cided by the courts.

“The at­tor­ney gen­eral’s opin­ion on this point is not dis­pos­i­tive,” said state Sen. Robert A. Zirkin, a more con­ser­va­tive Demo­crat from Bal­ti­more County. He suc­ceeded Frosh as chair­man of the Ju­di­cial Pro­ceed­ings Com­mit­tee.

“If the Court of Ap­peals is­sues a de­cree, ob­vi­ously we will abide by their de­ci­sion,” Zirkin said.

But Del. Kath­leen Du­mais, vice chair of the House Ju­di­ciary Com­mit­tee, said she be­lieves the courts will adopt Frosh’s rea­son­ing.

“It is a re­ally solid piece of work,” the Mont­gomery County Demo­crat said. She was one of the law­mak­ers who sought for­mal ad­vice on the money bail is­sue from the at­tor­ney gen­eral’s of­fice.

Du­mais pre­dicted the opin­ion will carry weight in both the ju­di­ciary and the leg­is­la­ture.

Even with­out a le­gal chal­lenge that could yield a prece­dent-set­ting opin­ion, she said, the Ju­di­cial Con­fer­ence’s Rules Com­mit­tee could put the opin­ion on its agenda. That panel could then pro­pose reg­u­la­tions to guide judges and court com­mis­sion­ers, sub­ject to ap­proval by the Court of Ap­peals.

Scott Shel­len­berger, state’s at­tor­ney for Bal­ti­more County, pre­dicted that any sig­nif­i­cant im­pact from the opin­ion would be “sev­eral years down the road.”

Shel­len­berger said there are sim­i­lar­i­ties between Frosh’s ar­gu­ments and the Court of Ap­peals’ rea­son­ing in a 2012 de­ci­sion. In DeWolfe v. Rich­mond, the court said de­fen­dants have a right to le­gal coun­sel at a hear­ing be­fore a court com­mis­sioner.

Be­fore that rul­ing, de­fen­dants were en­ti­tled to lawyers only at the sec­ond step of bail re­view, by a judge.

The makeup of the court has be­come more con­ser­va­tive since then. Del. Brett Wil­son, a Wash­ing­ton County Repub­li­can and a prose­cu­tor, called Frosh’s pre­dic­tion of how the court would come down “spec­u­la­tive at best.”

“It seemed to strain to get to the con­clu­sion they de­sired,” he said. “I just don’t agree with it.”

A spokesman for Gov. Larry Ho­gan said the ad­min­is­tra­tion is re­view­ing 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,” spokesman Dou­glass Mayer said. “We look for­ward to see­ing this de­bate con­tinue dur­ing up­com­ing leg­isla­tive ses­sion.”

The opin­ion could have its great­est im­pact in the leg­isla­tive arena, where lib­eral Democrats have been push­ing for years to scrap money bail.

Those law­mak­ers, as well as ad­vo­cates for crim­i­nal jus­tice re­form, see the Frosh opin­ion as giv­ing their ar­gu­ments more weight. They’d like to see fewer peo­ple held in jail pend­ing trial and more pre­trial su­per­vi­sion of those who are re­leased.

“The fix re­ally needs to be taken up by the leg­is­la­ture,” said Cherise Fanno Bur­deen, chief ex­ec­u­tive of the Pre­trial Jus­tice In­sti­tute in Rockville. “Why are we us­ing money bail in the first place in Mary­land? Why are we us­ing it any­where? We’re us­ing it frankly be­cause the bail bond in­dus­try wants us to.”

Opin­ions about Frosh’s opin­ion are not unan­i­mous in the bail bond in­dus­try, a pow­er­ful player in An­napo­lis and a gen­er­ous donor to law­mak­ers.

Ru­pert Ma­cLean, owner of Ch­e­sa­peake Bail Bonds in LaPlata, said the at­tor­ney gen­eral’s view threat­ens his busi­ness. “You are, in ef­fect, driv­ing us out of busi­ness and there ab­so­lutely would be un­in­tended con­se­quences,” he said.

But Mark Adams, a part­ner in Bal­ti­more’s Broad­way Bail Bonds and or­ga­nizer of the Mary­land Bail Agents As­so­ci­a­tion, doesn’t see the opin­ion as a threat as long as it’s not mis­in­ter­preted. He said peo­ple who can’t af­ford low lev­els of bail aren’t the in­dus­try’s cus­tomers any­way.

Both Ma­cLean and Adams op­pose any move by the leg­is­la­ture to scrap the money bail sys­tem.

Ma­cLean said de­fen­dants are not lan­guish­ing in jail be­cause they’re poor. “They’re sit­ting in jail be­cause their past be­hav­ior has in­di­cated to their fam­ily that they’re not trust­wor­thy,” he said.

Adams said the ra­tio­nale for money bail is le­git­i­mate. “The sole pur­pose of bail is to com­pel peo­ple to show up for court by im­pos­ing a penalty — that some­one will have to pay if they don’t show up,” he said.

And in many cases, that some­one is Mom, Adams said. He said he sel­dom has to use bounty hun­ters to drag a client into court be­cause shame usu­ally does the trick.

“I call the mother and she shames them into show­ing up,” he said. “It’s a much more ef­fec­tive and ef­fi­cient method than any state agency would have.”

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