The state’s top lawyer will ask Maryland’s judiciary to adopt a rule to ensure defendants are not kept in jail only because they can’t afford bail.
Attorney General Brian E. Frosh told The Baltimore Sun Monday that he will ask the judiciary’s Standing Committee on Rules of Practice and Procedure to embrace his conclusion that Maryland’s long-standing money bail system is unconstitutional.
Frosh reached that determination in a letter of advice sent to five state delegates who had asked for his opinion on the practice. Advocates for criminal justice reform contend that thousands of Marylanders languish in jail because they can’t afford bail, often after being charged with relatively minor offenses.
The attorney general, a Democrat, said he understands that he’s asking the committee to scrap a system that judges are used to and 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, other 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 version of a supreme 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 week to 10 days. The panel’s next scheduled meeting is Nov. 18.
Wilner, who could not comment on the merits of the idea, said it is not too late for Frosh’s proposal to be added to the panel’s agenda. He said it is not common for the attorney general to make rules proposals to the committee, but he also did not consider it extraordinary.
“It’s entirely possible and even likely we’re going to look at it,” Wilner said.
Scott Shellenberger, the Baltimore County state’s attorney and 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 in Maryland because 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 that many other states have adopted computerized checklists to help a judge evaluate which defendants can safely be released before trial and which level of supervision they will need.
“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. However, if the judges want to adopt a particular technology to assess risk, they might have to go to the General Assembly for the money.
Frosh said the 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. Frosh added that keeping someone in jail before they’ve been found guilty causes defendants to lose jobs and homes.