Mod­er­ate con­di­tions for bail, Md. judges told

‘Least oner­ous’ terms must be im­posed, chief of dis­trict courts says in ad­vi­sory let­ter

Baltimore Sun - - NEWS - By Justin Fen­ton jfen­ton@balt­sun.com twit­ter.com/justin_fen­ton

Mary­land’s chief Dis­trict Court judge has is­sued “cau­tion­ary ad­vice” for judges and com­mis­sion­ers on set­ting bail, af­ter an opin­ion by Mary­land’s at­tor­ney gen­eral said the state’s sys­tem of hold­ing de­fen­dants be­cause they can’t af­ford bail likely would be found un­con­sti­tu­tional.

The let­ter, sent by Chief Judge John P. Mor­ris­sey last week, in­structs judges to im­pose the “least oner­ous” con­di­tions on a de­fen­dant if the judge de­ter­mines the per­son can’t be re­leased on his own re­cog­ni­zance.

“Fi­nan­cial con­di­tions are not an ap­pro­pri­ate way of as­sur­ing pub­lic safety and should not be im­posed for the pur­pose of as­sur­ing the de­ten­tion of the de­fen­dant,” Mor­ris­sey wrote.

He said his ad­vice “should be con­strued to avoid, when­ever pos­si­ble, de­fen­dants be­ing de­tained who do not need to be de­tained.”

On Oct. 11, Mary­land At­tor­ney Gen­eral Brian E. Frosh sent a let­ter to five state del­e­gates who sought his opin­ion, say­ing judges and court com­mis­sion­ers must take into ac­count the ac­cused’s abil­ity to pay be­fore set­ting bail. He said that if bail is out of reach for a de­fen­dant, the courts would find that un­law­ful.

Mary­land rules say bail is in­tended to en­sure a de­fen­dant’s ap­pear­ance in court by im­pos­ing a fi­nan­cial bur­den. Judges can choose to hold some­one with­out bail if they be­lieve they are a dan­ger to the com­mu­nity or a flight risk.

Crit­ics say the cash bail sys­tem pro­vides un­even ac­cess to free­dom. Some fac­ing a high bail can pay for their re­lease, while oth­ers lan­guish in jail for months, un­able to pay a modest bail amount.

Most peo­ple ar­rested will first ap­pear be­fore a Dis­trict Court com­mis­sioner who de­cides whether they should be re­leased, held or have a bail set. Those who re­main held af­ter that stage ap­pear be­fore a Dis­trict Court judge for a bail re­view.

Mor­ris­sey’s let­ter in­structs judges and com­mis­sion­ers to re­lease de­fen­dants on their own re­cog­ni­zance un­less they find that no com­bi­na­tion of con­di­tions will en­sure the de­fen­dant’s ap­pear­ance and the safety of the al­leged vic­tims and other peo­ple in the com­mu­nity.

If judges de­ter­mine some­one can’t be re­leased on their own re­cog­ni­zance, “the ba­sis for the find­ing must be stated clearly on the record so that it is ca­pa­ble of re­view,” the let­ter says. Mor­ris­sey’s let­ter con­tin­ues: “If there is any rea­son­able like­li­hood of dan­ger to vic­tims, other per­sons, or the com­mu­nity, the de­fen­dant should not be re­leased.”

“Fi­nan­cial con­di­tions should not be im­posed if you know or have rea­son to be­lieve that the de­fen­dant is fi­nan­cially in­ca­pable of meet­ing.”

“Fi­nan­cial con­di­tions should not be im­posed in order to pla­cate pub­lic opin­ion or to pun­ish the de­fen­dant.”

The 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. Mary­land’s top pub­lic de­fender, Paul DeWolfe, said he’d like to see Mary­land go the way of the Dis­trict of Columbia and Ken­tucky. Both have elim­i­nated cash bail en­tirely.

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