Maryland Attorney General Brian E. Frosh has a stark warning for the General Assembly: A bill backed by the bail bond industry could undo a landmark rule issued by the state's top court curbing the role of money in determining which accused suspects are granted pretrial release.
Frosh is taking aim at legislation sponsored by Del. Curt Anderson and Sen. C. Anthony Muse that has won the support of bail bondsmen who are fighting to maintain their industry's place in the criminal justice system.
Their once-secure role has been less certain since the Court of Appeals issued a rule last month requiring judges and court commissioners to take into account a defendant's ability to afford bail when setting the terms for pretrial release.
The rule, which takes effect July 1 unless superseded by a new law, doesn't eliminate cash bail but could severely curtail its role in determining who goes free and who stays in jail.
"We're just fine if the General Assembly doesn't pass anything this year," said Frosh, who issued an opinion last year questioning the constitutionality of keeping prisoners in jail when they can't afford bail.
Frosh charged in an interview that the Anderson-Muse legislation imperils public safety by allowing judges to use high bail as a means to protect the public from suspects who represent a high risk of committing new crimes while awaiting trial.
"Setting high bail for somebody a judge thinks is a threat is a terrible mistake," Frosh said. "There is a general consensus both among law enforcement and judicial officers that you don't use bail for public safety." If it is risky to release someone, the suspect should be held without bail, he said.
Nicholas Wachinski, chief executive of Lexington National Insurance Corp. and an industry spokesman, denies the Muse-Anderson bill was written to the industry's specifications, as opponents charge.
"We offered input on the bill," Wachinski said. He defended the legislation as a compromise that balances the diverse interests trying to influence the outcome of the legislative battle.
"This bill is reflective of true bail reform that is in the best interest of Maryland," he said.
But the attorney general's warning may be having an impact. The legislation he opposes appears to be in jeopardy in the House of Delegates. Some lawmakers involved with the issue say it's now likely that the legislature will adjourn next month without passing any legislation dealing with pretrial release — a result Frosh and other bail reform advocates would welcome.
The Senate, however, is on a different track. A Judicial Proceedings Committee work group agreed Tuesday to amend the Muse bill and bring it to the full panel. Muse said the amended bill doesn't tamper with the court's rule. But advocates allied with Frosh said Tuesday night the legislation is still unacceptable and would allow judges to set unaffordable bail.
"It totally undoes the court rule," said Caryn York, leader of the Coalition for a Safe and Just Maryland. "Why would you undo a court rule that was supported unanimously by Maryland's highest court and has yet to take effect?"
The bail bond industry has mounted a determined campaign in favor of the Anderson-Muse bill. Its representatives say it would better protect the rights of the indigent than competing legislation backed by criminal justice reform advocates.
The industry has long exercised considerable clout at the State House. It has made generous contributions to lawmakers, particularly the chairmen and members of the House Judiciary and Senate Judicial Proceedings committees, which deal with bail-related bills. For example, Wachinski's Lexington National — one of many companies in the industry — has given almost $120,000 to Maryland political committees over the last dozen years.
Many liberal legislators, the Maryland ACLU and the Public Defender's Office are among those supporting a rival bill that would further minimize the role of cash in determining who stays behind bars and who goes free.
Wachinski dismissed that bill, sponsored by Sen. Delores Kelley of Baltimore County and Del. Erek Barron of Prince George's County, as "truly not a compromise" and a measure that fails to solve the problem of people staying in jail because they have little or no money.
York and other advocates are focusing their energy on blocking the legislation backed by the bail bonds industry. They have turned to the Legislative Black Caucus, hoping to mobilize African-American lawmakers against the industry-backed bill.
The caucus held a hearing last week at which members heard from opponents and supporters of the industry-backed bill, including civil rights leaders on both sides of the issue. Billy Murphy, the well-known Baltimore defense lawyer, said he told caucus members that the legislation undercuts the court rule and is "a reward to the bail bond industry," which he accused of sucking billions of dollars out of the black community over the years.
Del. Cheryl Glenn, who chairs the caucus, said the group plans to discuss which position it will take Thursday. The Baltimore Democrat said she's asked Anderson and Barron to make a joint recommendation but said she doubts the group would endorse anything that would interfere with the court's rule.
"We want to take the cash out" of the bail system, Glenn said. "We certainly don't want to be disruptive to anything that can be construed as progress."
The bill's House sponsor was having second thoughts.
"Probably nothing should go through," said Anderson. The Baltimore Democrat said he will abide by the caucus decision and withdraw the bill if the group opposes it.