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Frosh to ask judiciary to change money bail system

Maryland Attorney General Brian E. Frosh is planning to ask the state's judiciary to adopt a rule to ensure defendants are not kept in jail only because they can't afford bail.

Frosh told The Baltimore Sun on Monday that he will ask the Maryland judiciary's Standing Committee on Rules of Practice and Procedure to embrace his conclusion that the state's long-standing money bail system is unconstitutional.

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Frosh reached that determination in a letter of advice sent last week to five state delegates who had asked for his opinion on the practice.

Advocates for criminal justice reform say thousands of Marylanders languish in jail, often after being charged with relatively minor offenses, because they can't afford bail.

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Frosh, a Democrat, said he understands that he's asking the committee to scrap a system that has been in place for many years.

"It's not as if the changes that we're recommending are so wrenching that people can't figure out how to run the system," Frosh said.

The panel Frosh will ask to consider the change is a little-known but influential group of 24 members, including judges, lawyers, a court administrator and a court clerk. The group develops the regulations that govern court procedures throughout Maryland.

Members are appointed by the Court of Appeals, Maryland's highest court. The committee makes recommendations to that court, whose seven members have the final say on whether rules are adopted. The panel's chairman is Alan M. Wilner, a retired Court of Appeals judge.

Frosh said he hopes to send his request to the committee within the next 10 days. The panel's next scheduled meeting is Nov. 18.

Wilner said it is not too late to add Frosh's proposal to the panel's agenda. He said it is not common for the attorney general to make rules proposals to the committee, but he did not consider it extraordinary.

"It's entirely possible and even likely we're going to look at it," Wilner said. He said he could not comment on the merits of the idea.

Baltimore County State's Attorney Scott Shellenberger, a member of the committee, said Frosh is bringing his ideas to the right place.

"It certainly seems like there would be more positiveness and open-mindedness with the rules committee than with the legislature," said Shellenberger, a Democrat.

The committee has recent experience in dealing with the bail system. It grappled with how the court system would adapt to the 2012 Court of Appeals DeWolfe vs. Richmond decision that gave defendants the right to legal representation at initial bail hearings.

Wilner said the panel didn't go deeply into the legality of money bail because there were more pressing issues to deal with.

Frosh said many states have adopted computerized checklists to help a judge evaluate which defendants can safely be released before trial and the level of supervision they will need.

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"They make smarter decisions about who to release, so crime goes down and you save money," he said. "We don't have to invent the wheel. It's rolling."

The attorney general said his office will not recommend a particular risk-assessment tool, but would leave it up to the committee to write its own rule.

The judiciary can adopt a rule on bail without legislative approval, Frosh said. But if the judges want to adopt a particular technology to assess risk, they might have to go to the General Assembly for the money to pay for it.

Frosh said current rules specify that judges and court commissioners use the "least onerous" means to ensure that defendants show up for trial and avoid committing new offenses before they're due in court.

"That's not the way it's been applied across the board," he said. He said keeping defendants in jail before they've been found guilty causes some to lose jobs and homes.

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