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Panel would scrap bail money system

Justice SystemCourts and the JudiciaryMartin O'MalleyScott ShellenbergerJoseph M Getty

Low-risk criminal defendants would no longer have to raise money for bail before trial under a sweeping overhaul of Maryland's centuries-old pretrial release system being considered by a panel set up by the General Assembly.

In recommendations released this week, task force members said the state should scrap the system under which poor defendants often remain in jail while more affluent suspects can post bond and get out.

The members urged that Maryland replace the system, which is derived from English common law, with one that detains defendants only if they are found to be a flight risk or danger to the community.

Cherise Fanno Burdeen, chair of the panel that made the recommendation, said its members hope Maryland takes a "bold stand" in favor of "systemic change" that reduces unnecessary incarceration before trial. She also said such an overhaul would save taxpayers money and improve public safety.

"The longer someone stays in jail, particularly a low-risk person, the higher their likelihood of committing crimes when they're released," said Burdeen, chief operating officer of the Washington-based Pretrial Justice Institute.

The legislature set up the task force — which includes judges, prosecutors, defense attorneys, corrections officials and legislators — last year after the Court of Appeals ruled that indigent defendants have a right to legal representation in the bail-setting process.

The likely cost of hiring an estimated 250 additional public defenders prompted lawmakers to establish the panel to re-examine the pretrial release system.

If the full task force accepts the recommendation to eliminate bail, the proposal would go to Gov. Martin O'Malley and the General Assembly, which is expected to address the pretrial release system during a legislative session that begins in January.

Abolition of the bail system is likely to face fierce opposition — particularly from the state's powerful bail bond industry.

R. E. "Scott" MacLean III, owner of Chesapeake Bail Bonds in La Plata, said his industry plays a vital role in the criminal justice system. He said that without money or property at stake, and bondsmen willing to track down bail-jumpers, many defendants won't appear for trial.

"It doesn't take long before the criminal element learns that there's no teeth in an unsecured release," he said. MacLean noted that many low-risk defendants are already released without posting bail.

But critics of the current system hailed the recommendation.

Mitchell Y. Mirviss, an attorney with the Venable law firm, called bail "almost a medieval-type concept" of using assets to buy freedom pending trial. He brought the lawsuit that argued poor suspects should have access to counsel at all bail hearings.

"It was a rich man's device," Mirviss said.

He warned, however, that the proposed overhaul faces powerful opposition. "The bail bondsmen have a significant influence and authority in Annapolis," Mirviss said.

The proposal also could face resistance from Maryland prosecutors.

Baltimore County State's Attorney Scott Shellenberger, who represents prosecutors on the task force, said he likes the idea of using standardized risk assessments to reduce the number of defendants who have to post bail but believes bail should be retained for those facing more serious charges.

"I cannot at the moment conclude that eliminating cash bail in the state of Maryland is such a good idea," he said. "Some type of surety system is still necessary to assure their appearance in court."

Burdeen said the state could eliminate the need for a money-based system by adopting a statewide system to assess risks and determine the need for supervision and treatment pending trial.

She said the problem with the current system is not just that some people remain in jail who should be freed. In some cases, she said, defendants who have enough money are able to buy their freedom and avoid supervision even though they pose a danger to the community.

"It doesn't have to be this way. We have the tools we need to fix the system," she said.

Any proposal to make it more difficult for some defendants to get out of jail could face judicial scrutiny. The right to avoid "excessive bail" is written into the Bill of Rights and has been interpreted to put the burden on prosecutors to show a defendant poses a clear risk of flight or criminal activity if released before trial.

Douglas Colbert, a law professor at the University of Maryland and a longtime critic of the pretrial release system, said the American Bar Association recommended in 1968 that states move away from the bail system. He said states such as Kentucky, Oregon, Wisconsin and Illinois have eliminated bail.

Colbert said Maryland should follow those states' lead.

"For poor and low-income working people, money bail is the harshest condition that a judicial officer can require," he said. "Money bail discriminates against those who lack financial resources and favors the wealthy and well-to-do criminal defendant."

It's unclear what kind of support such a proposal would have in the legislature. Sen. Joseph M. Getty, a Carroll County Republican and member of the task force, said he doubts lawmakers would agree to dismantle the system.

"I am dubious about whether this would fly," he said.

michael.dresser@baltsun.com

Copyright © 2014, The Baltimore Sun
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Justice SystemCourts and the JudiciaryMartin O'MalleyScott ShellenbergerJoseph M Getty
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