Former U.S. Attorney General Eric Holder joined Maryland's top attorney and judges Thursday in urging the state's highest court to adopt new rules designed to prevent people who have been arrested from languishing in jail because they are unable to afford bail.
The Court of Appeals put off voting on a change until February, after a hearing that stretched more than six hours and included testimony from dozens of people. The proposed revisions call for judges and court commissioners to view requiring bail as a last option after considering a defendant's financial means.
An initial motion to adopt the changes failed to pass after garnering three votes from the seven judges.
Critics of the bail system say too many people are detained without being found guilty because they're given a bail that they can't pay. The purpose of bail is not to hold someone, but to ensure appearance in court. Judges can order someone held without bond if they believe they are dangerous or a flight risk.
Chief Judge Mary Ellen Barbera was among the judges who voted to pass the new rule, but others expressed concerns that jurisdictions across the state were not prepared to supervise an increase in people who are released under court-mandated conditions.
"Who's going to know if people are violating their no-contact orders, or any of these other items?" asked Judge Sally D. Adkins.
Judge Joseph Getty also wondered if the change could lead to an increase in people being detained.
"If I were the trial court judge and had even a moderate concern about reoffense on a victim, I'm going to keep him in detention," he said.
Holder, who served as attorney general from 2009 to 2015 under President Barack Obama and who has been advocating bail reform across the country, testified that Maryland's pretrial system "punishes low-income defendants, rewards wealthier defendants and disproportionately detains racial minorities." He said it was "failing to advance the interest of safety."
The changes would help "countless Maryland families to proceed with their lives in the face of difficult circumstances," Holder said.
An analysis by the Office of the Public Defender found there were more than 17,400 Marylanders over a five-year span who were jailed for at least five days when bail was set at $5,000 or less. Posting bail typically requires paying 10 percent, though some bondsmen will take 1 percent up front.
Others are held for weeks or months, and may plead guilty simply to achieve release.
"People should not be held in jail because they're poor," Maryland Attorney General Brian e. Frosh told the judges. "Dangerous people should be detained pending trial. The proposed rule, I believe, is consistent with both of those principles."
Former U.S. Solicitor General Paul Clement led those speaking out against the change, saying the bail system is "plainly constitutional" and should be an option for those seeking release.
"If we're concerned about unnecessary detention, we should keep a robust bond industry available," said Clement, who told The Sun afterward that he appeared at the hearing representing the bail bond company Lexington National Insurance Company.
In October, Frosh issued an opinion saying that he believed the state's bail system was unconstitutional, prompting a court rules committee led by retired Court of Appeals Judge Alan M. Wilner to recommend changes.
Judge John Morrissey, the chief judge of the District Court of Maryland, said that following Frosh's opinion, there was an uptick in people released on their own recognizance, from 49 percent to 54 percent. The number of people held without bail also increased, from "9 or 10 percent to 14 or 15 percent."
Morrissey said the proposed changes were "not a sea change in any manner or shape."
"When I saw these numbers, I was pleased," Morrissey told the appeals judges.
Wilner chided the legislature Thursday for not taking action sooner, and he attacked arguments being made by the bail bond industry. Some legislators have said previously that any changes should be handled by the legislature, though no members appeared at Thursday's hearing.
"Deferring to the legislature means nothing is going to be done, and that is exactly what they want," Wilner said of the bail bond industry.
Those speaking against the change included members of the bail bond industry, the Fraternal Order of Police, victims' rights advocates and even some defense attorneys.
Caroline Alvarez, a Baltimore defense attorney who said she previously believed bail didn't contribute to safety, said word of the move away from bail has already "spread like wildfire on the streets."
"These defendants believe they're getting a slap on the wrist," said Alvarez, adding that a client charged with a felony last week thought his charges weren't serious since he hadn't been given a bail.
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Another defense attorney, George Harper of Upper Marlboro, said the change would essentially result in a two-tier system that would bring a "double-whammy: too many people detained without bail, and too many people failing to appear."
One bail bondsman, Steven Reech, said he took exception to the idea that "poor people" were being jailed.
"The hard truth is the only reason they are sitting in jail is because they have been accused of committing a crime," he said. "People are not arrested on the size of their wallet."
Baltimore County Circuit Judge Kathleen G. Cox said the bail system has unintended consequences.
"If there's a public safety risk, you shouldn't be assessing it with reference to money," Cox said.