On November 18th, a group little known to the public, consisting mostly of judges and lawyers, may enact drastic changes to Maryland's criminal justice system. This group is the Maryland Court of Appeals Rules Committee, and they are considering a proposal that will harm public safety and potentially cost taxpayers millions of dollars.
Maryland's Attorney General Brian Frosh has introduced a proposal to the Rules Committee to abolish our current bail system, which is used to securely release many arrested individuals from jail prior to their trial. Mr. Frosh's effort is an end-run around elected lawmakers in the General Assembly, where similar efforts have failed, including legislation proposed by then state Senator Brian Frosh.
Currently, when a person is arrested in Maryland, he or she appears before a judicial officer who weighs a number of factors including the alleged crime, the criminal history of the suspect and their ability to post bail if necessary. Based on these factors, a judicial officer will determine if and how a defendant can be released from jail. If an offender presents a significant risk to public safety, then he or she can be held without bail. Low-risk detainees can be released on their promise to return for their trial.
A third option judges often utilize is to release offenders on the condition they post bail, which acts a security deposit ensuring they will return for their trial. Bail is generally reserved for offenders who pose a risk to public safety or who are a risk to flee rather than appear in court. If a suspect is unable to afford bail, Maryland, unlike any other state, guarantees an automatic right to a hearing before a judge where the suspect is provided an attorney and can seek a lower bail amount.
Our current bail system is based on English common law and thus is older than the state of Maryland. Bail is designed to motivate offenders to return to court and to refrain from engaging in further criminal conduct. This system costs taxpayers nothing and does a good job ensuring offenders show up for their trial.
Mr. Frosh and misguided activists want the state government to spend millions of dollars replacing private bail companies, which often post bail for arrestees, with government employees who will essentially do the same work. The end result will be government-run bail. The General Assembly has rejected this idea multiple times because it is expensive and unnecessary to spend millions of dollars setting up a new government agency that replicates what the private sector is currently doing for free.
We know that government-run bail performs poorly. Philadelphia's government-run bail system had over 47,000 individuals fail to appear in court during a two-year period. This means thousands of times justice was denied for victims of crime. For these reasons the Fraternal Order of Police, the Maryland Police Chief's Association and the Maryland Sheriff's Association have joined in opposition to Mr. Frosh's proposal.
Fortunately, the rules committee does not have the power to appropriate funds and establish government-run bail. However, members are working on rules that essentially prohibit the use of bail. This end-run will be disastrous as judges will be left with no options except to jail or release arrestees with little more than their promise to return for their trial. This means thousands of arrested individuals will fail to appear in court and become fugitives. It also means that others will languish in jail because a judge did not want to release them without assurance they would return for a trial. In short, Mr. Frosh is creating an "either/or" system. Either you walk out of jail for free or stay behind bars. This ignores the thousands of dangerous offenders who should only be released from jail with financial assurance that they will reappear for their trial. This proposal is breathtakingly naive.
The members of the rules committee should reject these radical changes to our criminal justice system. Weighty policy changes should be left to the Maryland General Assembly, where laws are made and all sides can be heard in an open and transparent setting. This process is wrong, the product is wrong, and the rules committee should not support such ill-conceived measures that will introduce chaos into Maryland's criminal justice system.