Baltimore State’s Attorney Marilyn J. Mosby has signed on to a court brief that argues that money bail “offends the Constitution, undermines confidence in the criminal justice system, impedes prosecutors, and fails to promote safer communities.”
Mosby’s support in the case comes amid a growing movement against cash bail around the country and in Maryland, with critics arguing that the system results in defendants without the means to pay being held pending trial while those with financial resources can buy their freedom.
City prosecutors say they have stopped requesting cash bails, after the state's highest court adopted a rule this year that put it at the bottom of the list of preferences for pretrial release conditions.
The movement was jump-started last fall when Maryland Attorney General Brian Frosh issued an opinion questioning whether use of bail in the pretrial release system would withstand a constitutional challenge.
“We haven’t asked for cash bail for many months,” said Patrick Motsay, chief of the Baltimore state’s attorney’s office’s Central Booking operations.
Motsay said the state’s attorney’s office has been working since 2015 using grant money to develop an algorithm that will perform an unbiased risk assessment and determine what pretrial conditions prosecutors should seek. He said the office hopes it will be available by March and will be made available for other jurisdictions.
“It can only work to give justice out there to the individuals and the public,” Motsay said.
The shift was on display during bail review hearings held Tuesday morning in District Court in Baltimore. Prosecutors asked that all nine defendants in the first group be held without bond. In one case, in which a District Court commissioner set a $75,000 bail for a suspect in an unarmed robbery, the assistant state’s attorney in the courtroom said he believed it was an “illegal bail.”
Before the hearing, Judge Katie M. O’Hara told the defendants that if she determined they could be released without a threat to public safety, she would set the “least onerous terms of release to ensure your appearance at trial.”
Eight defendants were held without bail and one was released on his own recognizance. None received bail.
Defense attorneys asked that bail be set in many of the cases. In the past, some of those charged would likely have received bail, and some would have been able to afford it and be released.
Those held without bond included several men charged with handgun violations or shootings, and a man accused of punching a 10-year-old child and stomping on his arm as the victim fought with his son. In another, a man was held without bond for allegedly assaulting a woman, who appeared in court and recanted the allegations through an attorney.
The only defendant released was a man who did not have a prior criminal history, accused of violating a protective order and shoving a woman.
Baltimore County State’s Attorney Scott Shellenberger said his prosecutors still request bail, but he said judges appear inclined to release defendants on their own recognizance or hold them without bail.
The amicus brief Mosby signed on to comes in a lawsuit brought against a Georgia city accused of holding indigent defendants for up to 48 hours without cause. Plaintiff Maurice Walker spent six days in detention for being a pedestrian under the influence of alcohol, which is not an offense punished with jail time. The brief in the case says detention for even a limited amount of time can “yield serious harms such as loss of a job or disrupted family connections.”
The brief was organized by Fair and Just Prosecution, a national network of elected prosecutors, and filed by Georgetown Law’s Institute for Constitutional Advocacy and Protection. Mosby was not made available for comment.
“As career prosecutors, we know that using bail to keep poor people detained pretrial solely based on their inability to pay not only offends the Constitution, but also is counterproductive from a law enforcement perspective,” said Mary McCord, a former federal prosecutor and Georgetown Law faculty member who wrote the brief. “We depend on victims, witnesses, and jurors to participate in a criminal justice system they see as fair, and a system that determines freedom on the basis of wealth undercuts that notion.”
“It is well settled that alternatives to money bail — in place in jurisdictions around the country — are not simply the right approach, but are also a more sensible strategy that keep our communities safe by using individualized determinations of risk of flight and dangerousness,” said Miriam Krinsky, executive director of Fair and Just Prosecution.