The Baltimore Sun Editorial Board has weighed in on the debate between legislation introduced to codify the new Maryland judiciary rules on the use of money bail and counter legislation introduced to “modernize” the system. The Sun’s take: eliminate bail or codify the new court rules, but don’t backslide protections in the name of “modernization”.
The other approach, supported by the bail bonds industry, sounds good at first. Its proponents cast it as part of the effort to “modernize” the use of bail in Maryland and to ensure that the state meets a high burden of proof before determining a defendant is a flight risk or a public safety threat and thus must be held before trial. It codifies the principle that high bail cannot be used as punishment or to placate public opinion. Both Paul Clement, who served as the solicitor general during the George W. Bush administration, and J. Howard Henderson, president of the Greater Baltimore Urban League, testified on its behalf, with the latter asserting that it would have no negative effect on minorities.
But in key respects, it amounts to a backpedaling on the reforms the Court of Appeals adopted, which are set to go into effect this summer. It jettisons the concept that judges and court commissioners use the least onerous means to make sure defendants show up in court and pose no risk to the community. It requires judges and detention officials to review jail populations to determine whether people are being held solely because of their inability to pay, but it does not enshrine in law Attorney General Brian E. Frosh’s conclusion that such detention is unconstitutional. And it perpetuates the idea that cash bail is an effective means to protect public safety rather than merely to encourage a defendant to return to court.
Ultimately, we believe the public would best be served by the elimination of cash bail altogether. It accomplishes nothing that can’t be achieved through other means, such as enhanced monitoring or, in circumstances when it’s really necessary, pre-trial detention. Such a system should be accompanied by adoption of a well tested and validated risk assessment tool to help court commissioners and judges determine whether and under what circumstances defendants should be released before trial. Other jurisdictions — notably, Washington, D.C. — have long histories of successful pre-trial management without cash bail.
Given the clout of the bail bonds industry in Annapolis, we don’t expect Maryland to move in that direction soon. But the judiciary’s new rules provide a solid foundation for reform, and they should be allowed to work. Even if legislators aren’t willing to pass new laws codifying and strengthening the courts’ new rules, we hope they will at least not gut them in the guise of “modernizing” the system.
For more information read the full editorial in The Baltimore Sun.
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