Maryland's chief District Court judge has issued "cautionary advice" for judges and commissioners on setting bail, after an opinion by Maryland's attorney general said the state's system of holding defendants because they can't afford bail likely would be found unconstitutional.
The letter, sent by Chief Judge John P. Morrissey last week, instructs judges to impose the "least onerous" conditions on a defendant if the judge determines the person can't be released on his own recognizance.
"Financial conditions are not an appropriate way of assuring public safety and should not be imposed for the purpose of assuring the detention of the defendant," Morrissey wrote.
He said his advice "should be construed to avoid, whenever possible, defendants being detained who do not need to be detained."
On Oct. 11, Maryland Attorney General Brian E. Frosh sent a letter to five state delegates who sought his opinion, saying 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.
Maryland rules say bail is intended to ensure a defendant's appearance in court by imposing a financial burden. Judges can opt to hold someone without bail if they believe they are a danger to the community or a flight risk.
Critics say the cash bail system provides uneven access to freedom, depending on the defendant's financial means. Some facing a high bail can pay for their release, while others languish in jail for months, unable to pay a modest bail amount.
Most people arrested will first appear before a District Court commissioner who decides whether they should be released, held or have a bail set. Those who remain held after that stage appear before a District Court judge for a bail review.
Morrissey's letter instructs judges and commissioners to release defendants on their own recognizance unless they find that no combination of conditions will ensure the defendant's appearance and the safety of the alleged victims and other people in the community.
If judges determine someone can't be released on their own recognizance, "the basis for the finding must be stated clearly on the record so that it is capable of review," the letter says.
Morrissey's letter continues:
•"If there is any reasonable likelihood of danger to victims, other persons, or the community, the defendant should not be released."
•"Financial conditions should not be imposed if you know or have reason to believe that the defendant is financially incapable of meeting."
•"Financial conditions should not be imposed in order to placate public opinion or to punish the defendant."
The 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. Maryland's top public defender, Paul DeWolfe, said he'd like to see Maryland go the way of the District of Columbia and Kentucky. Both have eliminated 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 influence of the bail bond industry, whose members include generous contributors to lawmakers.