American Bar Association’s President Joins Calls for Change in Md. Cash Bail System

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Add the president of our country’s largest professional legal organization to the list of people urging Maryland’s courts to stop putting poor defendants behind bars before trial with high bail.

On Tuesday, Linda Klein, president of the American Bar Association, emailed the Hon. Alan M. Wilner, chair of the Maryland Standing Rules Committee in Annapolis, to give her two cents. The Rules Committee sets administrative procedures for Maryland’s courts and is made up of lawyers and judges.

In her letter, Klein referred to the Maryland’s current cash bail system as a “wealth-based detention scheme. She asserted that the system doesn’t comply with the Eighth Amendment of the U.S. Constitution, the Maryland Constitution’s Declaration of Rights and nationally accepted ABA Criminal Justice Standards.

Attorney General Brian Frosh has made bail reform one of his most targeted public issues this year. State legislators, the Maryland Office of the Public Defender and now the president of the ABA have piled onto his argument that court officers’ ability to set bail unattainably high for poor defendants is unconstitutional – see: Eighth Amendment – and disproportionately affects minorities.

A report issued this week by the Maryland Office of the Public Offender used data from the past four years to back that argument. The experts behind the study cited in the report found two of Baltimore’s poorest neighborhoods suffered particularly from residents paying high bond premiums, and that defendants who were later found innocent collectively paid more than double the amount shelled out by those who were eventually found guilty. As they noted, the limitations of their study meant they probably underestimated these trends across the state.

An op-ed by a University of Maryland law professor published yesterday in The Sun shed some light on specific cases in which defendants fell victim to the bail system. The professor explained that his students had worked with low-level offenders who spent weeks behind bars because they couldn’t make bond of $5,000 or less for offenses like trespassing or possessing a small amount of an unidentified drug.

The opponents of change to the bail system include the deep-pocketed bail bonds industry and legislators who say the private, lucrative industry will be replaced by government-run bail systems that don’t effectively bring defendants back into court. Notably, the public defender’s office argued in its report that setting unsecured bond, which charges defendants for the set amount only if they don’t show up to their trial, would be an efficient alternative that still holds defendants accountable with jailing them for indefinite periods or leaving them financially strapped.

In her letter, Klein wrote that the ABA applauds Frosh and others’ push for reform and “stands ready to assist [the Rules Committee]” in implementing change.

The timing of her letter and the publication of the Office of the Public Defender’s report is no coincidence. The Standing Rules Committee is taking the issue up in a meeting tomorrow. If Frosh, Klein and others get their wish, its members will push Maryland to join other jurisdictions like D.C. and Kentucky that have managed to eliminate cash bail from their rulebooks.

Ethan McLeod
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