Frosh to ask courts to al­ter state bail sys­tem

At­tor­ney gen­eral says current prac­tice is un­fair

Baltimore Sun - - MARYLAND - By Michael Dresser mdresser@balt­ twit­­dresser

Mary­land At­tor­ney Gen­eral Brian E. Frosh is plan­ning to ask the state’s ju­di­ciary to adopt a rule to en­sure de­fen­dants are not kept in jail only be­cause they can’t af­ford bail.

Frosh told The Bal­ti­more Sun on Mon­day that he will ask the Mary­land ju­di­ciary’s Stand­ing Com­mit­tee on Rules of Prac­tice and Pro­ce­dure to em­brace his con­clu­sion that the state’s long-stand­ing money bail sys­tem is un­con­sti­tu­tional.

Frosh reached that de­ter­mi­na­tion in a let­ter of ad­vice sent last week to five state del­e­gates who had asked for his opin­ion on the prac­tice.

Ad­vo­cates for criminal jus­tice re­form say thou­sands of Mary­lan­ders lan­guish in jail, of­ten af­ter be­ing charged with rel­a­tively mi­nor of­fenses, be­cause they can’t af­ford bail.

Frosh, a Demo­crat, said he un­der­stands that he’s ask­ing the com­mit­tee to scrap a sys­tem that has been in place for many years.

“It’s not as if the changes that we’re rec­om­mend­ing are so wrench­ing that peo­ple can’t fig­ure out how to run the sys­tem,” Frosh said.

The panel Frosh will ask to con­sider the change is a lit­tle-known but in­flu­en­tial group of 24 mem­bers, in­clud­ing judges, lawyers, a court ad­min­is­tra­tor and a court clerk. The group de­vel­ops the reg­u­la­tions that govern court pro­ce­dures through­out Mary­land.

Mem­bers are ap­pointed by the Court of Ap­peals, Mary­land’s high­est court. The com­mit­tee makes rec­om­men­da­tions to that court, whose seven mem­bers have the fi­nal say on whether rules are adopted. The panel’s chair­man is Alan M. Wil­ner, a re­tired Court of Ap­peals judge.

Frosh said he hopes to send his re­quest to the com­mit­tee within the next 10 days. The panel’s next sched­uled meet­ing is Nov. 18.

Wil­ner said it is not too late to add Frosh’s pro­posal to the panel’s agenda. He said it is not common for the at­tor­ney gen­eral to make rules pro­pos­als to the com­mit­tee, but he did not con­sider it ex­tra­or­di­nary.

“It’s en­tirely pos­si­ble and even likely we’re go­ing to look at it,” Wil­ner said. He said he could not com­ment on the mer­its of the idea.

Bal­ti­more County State’s At­tor­ney Scott Shel­len­berger, a mem­ber of the com­mit­tee, said Frosh is bring­ing his ideas to the right place.

“It cer­tainly seems like there would be more pos­i­tive­ness and open-mind­ed­ness with the rules com­mit­tee than with the leg­is­la­ture,” said Shel­len­berger, a Demo­crat.

The com­mit­tee has re­cent ex­pe­ri­ence in deal­ing with the bail sys­tem. It grap­pled with how the court sys­tem would adapt to the 2012 Court of Ap­peals DeWolfe vs. Rich­mond de­ci­sion that gave de­fen­dants the right to le­gal rep­re­sen­ta­tion at ini­tial bail hear­ings.

Wil­ner said the panel didn’t go deeply into the le­gal­ity of money bail be­cause there were more press­ing is­sues to deal with.

Frosh said many states have adopted com­put­er­ized check­lists to help a judge eval­u­ate which de­fen­dants can safely be re­leased be­fore trial and the level of su­per­vi­sion they will need.

“They make smarter de­ci­sions about who to re­lease, so crime goes down and you save money,” he said. “We don’t have to in­vent the wheel. It’s rolling.”

The at­tor­ney gen­eral said his of­fice will not rec­om­mend a par­tic­u­lar risk-as­sess­ment tool, but would leave it up to the com­mit­tee to write its own rule.

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