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Judges should err on side of caution by giving repeat offenders high bail [Editorial]

There's a prevailing notion among some people, including us, that criminals are criminals and should be treated as criminals.

That opinion is not new on this page. We have often taken judges to task for what we have perceived as them being too easy on criminals.

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So, when Harford County District Court Judge Mimi Cooper ordered three defendants last Friday to be held without bail, it wouldn't have raised our eyebrows, if not for some rumblings elsewhere in the state. Maryland court officials are studying whether judges and court commissioners have been setting bails too high for low-income defendants to pay, guaranteeing their only option is to stay in jail until disposition of their case.

We have routinely sat through daily bail review hearings in Harford County District Court, including in Judge Cooper's courtroom, and what we have observed is a mixed bag.

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Three people, including one man charged with DUI who was convicted of murder 30 years ago, are being held in the Harford County jail indefinitely on no bail because of their criminal histories.

Sometimes, defendants have been released on their own recognizance, which means being released without posting any bail. Others have had bail reduced or increased, according to what the judge on the bench thinks is appropriate. On some occasions, the judge has ordered defendants held without bail.

We can't speak to what happens elsewhere in the state, nor can we speak to what happens in Harford County on the days we haven't sat in on the bail review hearings.

What we can say is that we don't agree with some of what Maryland Attorney General Brian Frosh said recently. He issued an opinion in mid-October expressing that excessive bails could be unconstitutional. Excessive bails are prohibited by the Eighth Amendment to the Constitution and by the Maryland State Constitution.

The legal theory that Frosh reinforced is that bail is only to be set high enough that it not only insures that the defendant will show up for trial, but also protects the victims and public safety. On all of those matters, we agree, particularly with the protection of the public part.

A rule change that would ensure defendants in Maryland are not kept in jail only because they can't afford bail is headed to the state's highest court for consideration.

How to accomplish that, like just about everything in the judicial system, is subjective. That's where we disagree with Frosh's view.

Each defendant and each case is different. Some defendants have been charged repeatedly with Failure To Appear in court. How do state officials expect a judge to set a paltry bail and then feel confident a defendant will show up for trial when they've already been charged 11 previous times with failure to appear?

Among the first things prosecutors bring up when it's their time to speak during bail review hearings is how many previous charges and convictions a defendant has, especially how many times the defendant has not shown up for court.

The facts of each case shouldn't be minimized when it comes to setting bail because some state officials fear defendants are being treated unfairly by having their bail set too high that they have no chance – because of their financial situation – to post it.

Maryland's chief district court judge instructed judges to impose the "least onerous" conditions on a defendant when determining bail.

The three defendants Judge Cooper ordered held without bail last week should all have been held without bail.

One defendant had his $3,000 bail changed to being held without bail on a drunk driving case from Worcester County on Aug. 14 that he failed to appear in court to face. An assistant state's attorney said he has a long criminal record, including a 1986 conviction for first-degree murder.

Another defendant has been wanted on theft charges for more than two years. An arrest warrant was issued for her on Dec. 3, 2014 but police have not been able to find her to serve it. The prosecutor said she has been convicted of grand larceny in Virginia and is facing aggravated assault charges in Washington, D.C. The judge said she was arrested in New Jersey with items stolen from a victim in Harford County.

The third was someone who has convictions for first-degree assault in 2005, assaulting a Department of Corrections staffer in 2007 and drug distribution in 2009. Someone told police he had a gun, which isn't allowed because of his convictions. The judge read in the statement of charges that he had threatened to kill the woman who told police, her boyfriend and her daughter, if his gun wasn't returned.

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Judge Cooper said that information was "quite chilling."

An opinion issued this week by Attorney General Brian E. Frosh concluding that it is likely unconstitutional to keep people in jail because they can't afford bail could have widespread impact.

"I make a finding you are an extraordinary danger to the community," she told the defendant.

We agree. We also agree with her opinion that the best way to insure the other two show up for court is if they have to stay in jail until trial.

In almost every case, we would encourage Harford County judges to either keep setting bails the way they have, or set them higher.

Let's not forget that those of us who are law-abiding citizens have as much right to be safe from criminals as criminals have to a reasonable bail. If an error is to be made, most reasonable minded people would err on the side of protecting the law-abiding folks, not the repeat offenders.

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