AG Questions Constitutionality of MD Cash Bail

Maryland lawmakers sought information from the Attorney General’s Office on the constitutionality of the state’s cash bail system. The office responded in a letter that the current system could be found to be unconstitutional and in violation of due process by the courts.

The Washington Post reports:

In an 11-page opinion, Sandra Benson Brantley, counsel to the General Assembly, wrote that the current system, which sets bails at amounts many defendants can’t afford, could violate due process.

“If pretrial detention is not justified yet bail is set out of reach financially for the defendant,” the opinion said, “it is also likely the Court would declare that the bail is excessive under the Eighth Amendment of the U.S. Constitution,” which prohibits the government from imposing excessive fines or cruel and unusual punishment.

State lawmakers have argued that the current system, which leaves defendants in jail for months awaiting trial, is discriminatory and unfair. If the state was to do away with the cash bail system, Maryland would join a handful of other states, including Kentucky and New Jersey, that have enacted pretrial detention reform.

Dumais, Del. Erek L. Barron (D-Prince George’s), Del. Shelly L. Hettleman (D-Baltimore), Del. Marc A. Korman (D-Montgomery) and Del. Brooke E. Lierman (D-Baltimore) sent a joint letter to Attorney General Brian E. Frosh in August asking him to weigh in on whether setting bail, without considering whether a defendant could afford to pay, was a violation of the equal protection and due process clauses under the 14th Amendment.

Dumais said pretrial reform should be the “next step” in the state’s efforts to improve criminal justice. Earlier this year, lawmakers passed a far-reaching criminal justice bill that eliminates mandatory-minimum sentences for nonviolent drug offenders, increases penalties for several violent crimes and allows some nonviolent criminals to be released from prison earlier.

The Baltimore Sun breaks down what the letter means and its significance to judicial action:

The advice letter is not a court ruling but, in effect, the attorney general’s office’s prediction, based on prior court rulings, of what the Court of Appeals might decide if the question lands in their laps.

Frosh unequivocally predicted that the court would rule that a judicial officer — that is, a judge or court commissioner — “may not impose a financial condition set solely to detain the defendant.”

He contended that a defendant may still be held in jail until trial for good reasons, such as likelihood to flee or to harm others. But otherwise, he said, the finding would be that courts must conduct an “individualized inquiry” into the defendant’s ability to pay and set bail no higher than the person can afford.

Both articles note previous efforts to reform Maryland’s pretrial systems (MACo was a stakeholder). Neither of those efforts, for varying reasons, resulted in ending the system of cash bail. This issue will likely be back on the legislative agenda in the 2017 session.

For more information:

Md. attorney general’s office raises constitutionality questions about state’s cash bail system (The Washington Post)

Maryland Attorney General Brian Frosh questions legality of bail defendants can’t afford (The Baltimore Sun)