By Michael Dresser
Maryland's highest court adopted a landmark rule Tuesday aimed at ending the practice of holding criminal defendants in jail before trial when they cannot afford bail.
The seven-member Court of Appeals unanimously agreed on a compromise that does not abolish money bail, as some advocates have urged, but instructs judges and court commissioners to look first to other ways to ensure a defendant appears for trial.
Chief Judge Mary Ellen Barbera called the final language "the best possible proposed rule we can expect when we're working with all stakeholders."
The rule won praise from both bail reform advocates and the bail bond industry, which felt threatened by the original proposal from the court's rules committee.
"Certainly there's a consensus that the lack of money should not keep someone in jail before they have a trial," said Douglas Colbert, a law professor at the University of Baltimore and a longtime advocate for criminal justice reform.
Nicholas J. Wachinski, representing bondsmen, said the rule keeps the option of money bail.
"It preserves judicial discretion and allows judges to be judges," he said.
Wachinski, chief executive of Lexington National Insurance Corp. in Lutherville, said the rule will not put the bail bond industry out of business.
"The industry is committed to serving Maryland and will continue to do so in the future," he said.
The court agreed the new rule will take effect July 1.
The court's action largely accepts the legal reasoning of Maryland Attorney General Brian E. Frosh. The state's chief lawyer, a Democrat, issued advice last year that it is unconstitutional to hold a defendant in jail for no reason other than an inability to afford money bail.
Frosh said the courts must take into account the individual circumstances of each defendant rather than set bail based solely on the nature of the charge. He said that if defendants pose a risk to the community or a flight risk, it is more appropriate to hold them without bond rather than counting on high bail to keep them behind bars.
Paul B. DeWolfe Jr., the state's chief public defender, said the rule preserves the spirit of Frosh's proposal.
"We're very happy that the Court of Appeals approved a rule the purpose of which is to ensure that individuals are not detained or held in jail merely because they're poor," he said.
Frosh, who led fights for bail reform in the state Senate before his election as attorney general in 2014, congratulated the court for addressing the issue head-on.
"It'll lead to better outcomes, the process will be constitutional and fair, and I think it's a great achievement," he said.
Early last month, the court held a contentious six-hour hearing on the proposed rule at which representatives of law enforcement and the bail bond industry predicted dire consequences from a drastic overhaul of the pretrial release system.
Three members of the court voted to adopt the rules committee's proposed changes then, but the majority decided to postpone a decision.
After a month of back-and-forth discussion with the rules committee, the court adopted compromise language proposed Tuesday by Judge Shirley M. Watts. Judge Joseph M. Getty, a conservative Hogan appointee who had been skeptical of the rules committee's original proposal, joined in the final consensus.
"They managed to achieve not only a consensus but unanimity, and they did it around a difficult subject," Frosh said.
The attorney general said courts have many tools besides cash bail to see that defendants show up for trial and don't commit new offenses, including pretrial supervision and electronic monitoring.
"They can require drug counseling. They can require attendance at Alcoholics Anonymous," he said. "There are a lot of things they can do that are likely to yield better outcomes."
While the court's action does not require legislative approval, Frosh said there's still a role for the General Assembly in bail reform efforts. He suggested that lawmakers could push for a statewide system of pretrial supervision to replace the current patchwork system and reduce the need to hold defendants in jail.
"If we make very robust investments, we'll save millions and millions of dollars," he said.
Cherise Fanno Burdeen, chief executive officer of the Pretrial Justice Institute, an advocacy group, said lawmakers must follow up with their own action.
"It's now up to the state legislature to pursue comprehensive reforms of the state's pretrial system and move away from money bail towards [what] we know works: evidence-backed pretrial risk assessment and supervision."
Getty, though he joined in the consensus, was less optimistic about the result.
"This rule will be back before us within the next five to 10 years," he told his fellow judges.
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