Last week Maryland’s Court of Appeals unanimously decided to adopt new rules to change the way bail is set when a person charged with a crime comes before a judicial officer. This follows extensive publicity and discussion as to whether poor people who cannot afford to post bail were disproportionately having to remain in jail pending trial.
The Maryland Rules of Criminal Procedure have long detailed what happens when a person charged with a crime comes before a judicial officer, usually a District Court Commissioner, for a determination of pretrial release. The current rules include release of a person charged with lesser crimes on their own recognizance, but also empower the judicial officer to set monetary bail to obtain pretrial release. This is often in the form of a bail bond, that may be secured by some collateral, issued by a bail bondsman but which will normally require some cash to be posted by the accused individual.
This discussion of the effect of this system on low income individuals began in earnest after Attorney General Brian Frosh wrote to the legislature, raising the issue of whether the practice of bail in Maryland unfairly affected the poor. The Court’s Standing Committee on Rules of Practice and Procedure considered the issue, and the seven judges on the Court held a public hearing on January 5 to discuss proposed changes. Not surprisingly, the bail bond industry lobbied to maintain bail as a tool to assure appearance by accused persons at trial. Others argued for abolition of the use of bail as a condition of pretrial release.
The Court of Appeals decided to change the rules to require that the judicial officer consider the financial circumstances of each person subject to pretrial release before determining whether to impose a requirement of bail. The Court determined that the officer’s “preference” should be to impose requirements for release other than bail. These include such things as wearing an ankle bracelet for pretrial monitoring, or requirements of frequent reporting to court officers before coming to Court. However, the Court rejected arguments that bail should be listed as a last resort to other conditions of pretrial release. The Rules are being finalized by the Court, to go into effect July 1.
Although the new rules have been hailed by opponents of bail as a major change for the better for low income persons, it remains to be seen if legislation is proposed to further limit or eliminate the use of bail in Maryland.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.