Frosh opinion on bail could have significant impact on justice system

Jail populations in Maryland could fall. Lawmakers might have to confront an issue they've sidestepped. And the future of a powerful industry could be in doubt.

All are possible results of an opinion issued this week by Attorney General Brian E. Frosh, who concluded that keeping people in jail because they can't afford bail is probably unconstitutional.


The opinion, written in response to a request by five Democratic delegates, calls into question the state's long-standing practice of letting courts set high bail as a way of keeping some prisoners in jail. If the state's highest court were confronted with such a case, Frosh warns, it would likely upend the state's system of pretrial detention.

"Absolutely it's a big deal," said Caryn York, senior policy advocate at the Job Opportunities Task Force. "It's exactly what the courts, policymakers and other key stakeholders need to get something done."


Frosh does not rule out money bail entirely, but the opinion could weaken some of the institution's foundations.

He wrote that neither a judge nor a commissioner may "impose a financial condition solely to detain the defendant." He said those court officers must impose the least onerous conditions necessary to ensure that a defendant shows up for trial and to protect victims and public safety.

The opinion did not come as a surprise to those who are familiar with Frosh's track record in Annapolis. As a Democratic state senator before his election as attorney general in 2014 — he chaired the Senate Judicial Proceedings Committee for a dozen years — he was a staunch critic of Maryland's money bail system.

But as attorney general, his opinions could carry greater weight — in the courts, in the General Assembly and in public debate.

"Preventive detention is OK, but what's not OK is for somebody to be in jail because they can't afford to get out," Frosh said in an interview.

The opinion's importance may be decided by the courts.

"The attorney general's opinion on this point is not dispositive," said state Sen. Robert A. Zirkin, a more conservative Democrat from Baltimore County. He succeeded Frosh as chairman of the Judicial Proceedings Committee. "If the Court of Appeals issues a decree, obviously we will abide by their decision," Zirkin said.

But Del. Kathleen Dumais, vice chair of the House Judiciary Committee, said she believes the courts will adopt Frosh's reasoning. "It is a really solid piece of work," the Montgomery County Democrat said. She was one of the lawmakers who sought formal advice on the money bail issue from the attorney general's office.

Dumais predicted the opinion will carry weight in both the judiciary and the legislature.

Even without a legal challenge that could yield a precedent-setting opinion, she said, the Judicial Conference's Rules Committee could put the opinion on its agenda. That panel could then propose regulations to guide judges and court commissioners, subject to approval by the Court of Appeals.

Scott Shellenberger, state's attorney for Baltimore County, predicted that any significant impact from the opinion would be "several years down the road."

Shellenberger said there are similarities between Frosh's arguments and the Court of Appeals' reasoning in a 2012 decision. In DeWolfe v. Richmond, the court said defendants have a right to legal counsel at a hearing before a court commissioner.


Before that ruling, defendants were entitled to lawyers only at the second step of bail review, by a judge.

The makeup of the court has become more conservative since then. Del. Brett Wilson, a Washington County Republican and a prosecutor, called Frosh's prediction of how the court would come down "speculative at best."

"It seemed to strain to get to the conclusion they desired," he said. "I just don't agree with it."

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

"The issue of bail reform is an important one and has been discussed for many years in Maryland by both the judiciary and the legislature," spokesman Doug Mayer said. "We look forward to seeing this debate continue during upcoming legislative session."

The opinion could have its greatest impact in the legislative arena, where liberal Democrats have been pushing for years to scrap money bail.

Those lawmakers, as well as advocates for criminal justice reform, see the Frosh opinion as giving their arguments more weight. They'd like to see fewer people held in jail pending trial and more pretrial supervision of those who are released.

"The fix really needs to be taken up by the legislature," said Cherise Fanno Burdeen, chief executive of the Pretrial Justice Institute in Rockville. "Why are we using money bail in the first place in Maryland? Why are we using it anywhere? We're using it frankly because the bail bond industry wants us to."

Opinions about Frosh's opinion are not unanimous in the bail bond industry, a powerful player in Annapolis and a generous donor to lawmakers.

Rupert MacLean, owner of Chesapeake Bail Bonds in LaPlata, said the attorney general's view threatens his business. "You are, in effect, driving us out of business and there absolutely would be unintended consequences," he said.

But Mark Adams, a partner in Baltimore's Broadway Bail Bonds and organizer of the Maryland Bail Agents Association, doesn't see the opinion as a threat as long as it's not misinterpreted. He said people who can't afford low levels of bail aren't the industry's customers anyway.

Both MacLean and Adams oppose any move by the legislature to scrap the money bail system.

MacLean said defendants are not languishing in jail because they're poor. "They're sitting in jail because their past behavior has indicated to their family that they're not trustworthy," he said.

Adams said the rationale for money bail is legitimate. "The sole purpose of bail is to compel people to show up for court by imposing a penalty — that someone will have to pay if they don't show up," he said.

And in many cases, that someone is Mom, Adams said. He said he seldom has to use bounty hunters to drag a client into court because shame usually does the trick.

"I call the mother and she shames them into showing up," he said. "It's a much more effective and efficient method than any state agency would have."


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