End­ing Md. cash bail sys­tem will en­dan­ger pub­lic

Baltimore Sun - - COMMENTARY - By Michael Hough Michael Hough, a Repub­li­can, is a state se­na­tor rep­re­sent­ing Fred­er­ick and Car­roll Coun­ties; his email is michael.hough@se­nate.state.md.us.

On Novem­ber 18, a group lit­tle known to the pub­lic, con­sist­ing mostly of judges and lawyers, may en­act dras­tic changes to Mary­land’s crim­i­nal jus­tice sys­tem. This group is the Mary­land Court of Ap­peals Rules Com­mit­tee, and they are con­sid­er­ing a pro­posal that will harm pub­lic safety and po­ten­tially cost tax­pay­ers mil­lions of dol­lars.

Mary­land’s At­tor­ney Gen­eral Brian Frosh has in­tro­duced a pro­posal to the rules com­mit­tee to abol­ish our cur­rent bail sys­tem, which is used to se­curely re­lease many ar­rested in­di­vid­u­als from jail prior to their trial. Mr. Frosh’s ef­fort is an end-run around elected law­mak­ers in the Gen­eral Assem­bly, where sim­i­lar ef­forts have failed, in­clud­ing leg­is­la­tion pro­posed by then­state Sen. Brian Frosh.

Cur­rently, when a per­son is ar­rested in Mary­land, he or she ap­pears before a ju­di­cial of­fi­cer who weighs a num­ber of fac­tors in­clud­ing the al­leged crime, the crim­i­nal his­tory of the sus­pect and their abil­ity to post bail if nec­es­sary. Based on these fac­tors, a ju­di­cial of­fi­cer will de­ter­mine if and how a de­fen­dant can be re­leased from jail. If an of­fender presents a sig­nif­i­cant risk to pub­lic safety, then he or she can be held with­out bail. Low-risk de­tainees can be re­leased on their prom­ise to re­turn for their trial.

A third op­tion judges of­ten uti­lize is to re­lease of­fend­ers on the con­di­tion they post bail, which acts a se­cu­rity de­posit en­sur­ing they will re­turn for their trial. Bail is gen­er­ally re­served for of­fend­ers who pose a risk to pub­lic safety or who are a risk to flee rather than ap­pear in court. If a sus­pect is un­able to af­ford bail, Mary­land, un­like any other state, guar­an­tees an au­to­matic right to a hear­ing before a judge where the sus­pect is pro­vided an at­tor­ney and can seek a lower bail amount.

Our cur­rent bail sys­tem is based on English com­mon law and thus is older than the state of Mary­land. Bail is de­signed to mo­ti­vate of­fend­ers to re­turn to court and to re­frain from en­gag­ing in fur­ther crim­i­nal con­duct. This sys­tem costs tax­pay­ers noth­ing and does a good job of en­sur­ing that of­fend­ers show up for their trial.

Mr. Frosh and mis­guided ac­tivists want the state gov­ern­ment to spend mil­lions of dol­lars re­plac­ing pri­vate bail com­pa­nies, which of­ten post bail for ar­restees, with gov­ern­ment em­ploy­ees who will es­sen­tially do the same work. The end re­sult will be gov­ern­ment-run bail. The Gen­eral Assem­bly has re­jected this idea mul­ti­ple times be­cause it is ex­pen­sive and un­nec­es­sary to spend mil­lions of dol­lars set­ting up a new gov­ern­ment agency that repli­cates what the pri­vate sec­tor is cur­rently do­ing for free.

We know that gov­ern­ment-run bail per­forms poorly. Philadel­phia’s gov­ern­ment-run bail sys­tem had over 47,000 in­di­vid­u­als fail to ap­pear in court dur­ing a two-year pe­riod. This means thou­sands of times jus­tice was de­nied for vic­tims of crime. For these rea­sons the Fra­ter­nal Or­der of Po­lice, the Mary­land Po­lice Chief’s As­so­ci­a­tion and the Mary­land Sher­iff’s As­so­ci­a­tion have joined in op­po­si­tion to Mr. Frosh’s pro­posal.

For­tu­nately, the rules com­mit­tee does not have the power to ap­pro­pri­ate funds and es­tab­lish gov­ern­ment-run bail. How­ever, mem­bers are work­ing on rules that es­sen­tially pro­hibit the use of bail. This end-run will be dis­as­trous as judges will be left with no op­tions ex­cept to jail or re­lease ar­restees with lit­tle more than their prom­ise to re­turn for their trial. This means thou­sands of ar­rested in­di­vid­u­als will fail to ap­pear in court and be­come fugi­tives. It also means that oth­ers will lan­guish in jail be­cause a judge did not want to re­lease them with­out as­sur­ance they would re­turn for a trial. In short, Mr. Frosh is cre­at­ing an “ei­ther/or” sys­tem. Ei­ther you walk out of jail for free or stay be­hind bars. This ig­nores the thou­sands of dan­ger­ous of­fend­ers who should only be re­leased from jail with fi­nan­cial as­sur­ance that they will reap­pear for their trial. This pro­posal is breath­tak­ingly naive.

The mem­bers of the rules com­mit­tee should re­ject these rad­i­cal changes to our crim­i­nal jus­tice sys­tem. Weighty pol­icy changes should be left to the Mary­land Gen­eral Assem­bly, where laws are made and all sides can be heard in an open and trans­par­ent set­ting. This process is wrong, the prod­uct is wrong, and the rules com­mit­tee should not sup­port such ill­con­ceived mea­sures that will in­tro­duce chaos into Mary­land’s crim­i­nal jus­tice sys­tem.

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