Maryland Attorney General Brian Frosh questions legality of bail defendants can't afford

Maryland's top legal officer has concluded that the state's system of holding defendants in jail because they can't afford to pay cash bail likely would be found unconstitutional.

In a letter sent Tuesday to five House of Delegates members who sought his opinion, Attorney General Brian E. Frosh told them that judges and court commissioners must take into account the accused's ability to pay before setting bail. He said that if bail is out of reach for a defendant, the courts would find that unlawful.


"You can't imprison someone for poverty," Frosh said in an interview. "For one guy, $1,000 bail is no big deal. For somebody else, they might not have 100 bucks, much less $1,000."

The advice letter likely will send ripples through the state's court system, bail bond industry and local jails. While it is not binding on the judiciary, it gives defense lawyers throughout the state fresh ammunition when arguing for lower bail for their clients.


"We're going to start using it tomorrow morning," said Paul DeWolfe, the state's chief public defender. "That's really a game-changer if the judiciary follows the opinion."

A spokesman for Gov. Larry Hogan said the administration is reviewing the opinion.

Timothy F. Maloney, an attorney and former state delegate who sat on a state commission on pretrial detention, predicted that the opinion will "lead to lead to revolutionary changes in our system"

"The attorney general has very effectively laid out the constitutional weaknesses of our bail system, and the bail bondsman is rapidly becoming a dinosaur in the courthouse," Maloney said.


It is difficult to say how many people could be freed statewide if the judiciary agrees with Frosh. Criminal justice reform advocates point to an alarming lack of data about people in pretrial detention.

However, Robert C. Embry Jr., president of the Abell Foundation, wrote earlier this year that in Baltimore alone more than 8,200 defendants were granted bail but couldn't afford to post it. Most, he wrote, were poor and African-American.

Toni Holness, public policy counsel for the Maryland ACLU, said two-thirds of the state's jail population are being held before trial. She said it's likely the bail system reflects the same racial disparities found in other parts of the criminal justice system.

Holness said she hopes the opinion leads to standardized pretrial release practices around the state.

"It is either that you are a danger to society, in which case no amount of money should buy your freedom, or you are not a danger to society and your inability to afford bond should not keep you detained," Holness said.

The advice letter is not a court ruling but, in effect, the attorney general's office's prediction, based on prior court rulings, of what the Court of Appeals might decide if the question lands in their laps.

Frosh unequivocally predicted that the court would rule that a judicial officer — that is, a judge or court commissioner — "may not impose a financial condition set solely to detain the defendant."

He contended that a defendant may still be held in jail until trial for good reasons, such as likelihood to flee or to harm others. But otherwise, he said, the finding would be that courts must conduct an "individualized inquiry" into the defendant's ability to pay and set bail no higher than the person can afford.

The state's highest court likely would find that excessive bail violates the Eighth Amendment to the U.S. Constitution and the Maryland Declaration of Rights, Frosh contended.

Maloney said he thinks the state Court of Appeals will have to take up the issue and address the constitutionality of the state's pretrial system.

"I do not think the Maryland bail system could survive constitutional scrutiny," he said.

Frosh's letter comes amid a national debate on whether cash bail systems are fair or effective. States from Maine to Arizona are debating abandoning their current systems. DeWolfe said he's like to see Maryland go the way of the District of Columbia and Kentucky and eliminate cash bail entirely.

Maryland twice convened legislative task forces to study the issue of cash bail but never reached a consensus for major change. One important reason was the clout of the bail bond industry, whose members include generous contributors to lawmakers.

The Frosh letter could have significant implications for that industry's future if more defendants are released without bail or are able to pay the bond out of their own resources. A spokesman for the industry could not be reached Tuesday night.

The issue also is getting attention at the federal level.

In March, the Department of Justice launched a program to review the fairness of cash bail systems. That effort includes a $2.5 million grant program for governments looking to replace them with something else.

Frosh said his legal advice is in line with a recent brief filed with the U.S. Justice Department in a Georgia case challenging that state's bail system.

Scott Shellenberger, Baltimore County state's attorney, said he had not seen the opinion. He said he has advocated changes to the pretrial system including standardized "risk assessments."

"I do think bail still plays a very important role in our system," said Shellenberger, a conservative Democrat. "I can't imagine completely eliminating it."

One reason, he said, is that defendants who post bond often have to rely on family, which can be an extra incentive for people to come to court.

"That in my mind gives a defendant skin in the game," he said. "You don't walk away knowing your mother, your father, your grandmother are going to be on the hook for the rest of the money."

The opinion was sought by Dels. Erek L. Barron of Prince George's County, Shelly Hettleman of Baltimore County, Brooke E. Lierman of Baltimore and Kathleen Dumais and Marc Korman of Montgomery County. All are Democrats.

Barron called the letter "extremely important."

"The opinion demands action from Annapolis," he said.

But Frosh said his letter doesn't require legislative action.

"This is really a matter for the judiciary," he said.

Baltimore Sun reporter Erin Cox contributed to this article.

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