Bail Reform Arguments Heard by Maryland High Court

Earlier this month, the Maryland Court of Appeals heard arguments from noteworthy proponents of a recommended series of reforms to the existing bail system, including vocal expressions of support from former Attorney General Eric Holder and Brian Frosh, the state’s current Attorney General.



The prospective changes would require court commissioners and judges themselves to use bail requirements as a mechanism of last resort after taking each defendant’s financial circumstances into consideration.

Critics of Bail System Cite Underlying Unfairness

Defense attorney Oleg Fastovsky commented, “An unacceptably large number of individuals find themselves indefinitely held in police custody simply because they lack the financial means to make bail.”

Those in support of the proposed changes emphasize that the underlying rationale for the imposition of bail is to secure the defendant’s appearance at subsequent court dates, not as a means of facilitating detention.

In voicing his approval of the Maryland bail reform initiative, former Attorney General Holder stated that as a practical matter, the system currently in place actually works to punish lower-income individuals accused of criminal offenses, rewards those of greater means and results in the detention of a disproportionate number of minority defendants.

In addition, Holder argued, the bail system itself did not actually advance the cause of increasing public safety.

According to a study undertaken by the Office of the Public Defender, over 17,400 residents across a five-year time span were detained for five days or more when bail had been set at $5,000 or under.

It was revealed that a number of defendants ended up being detained for weeks and sometimes even months at a time, increasing the danger that some of them might enter a guilty plea for no other reason than to be released.



As Attorney General Frosh argued, while defendants deemed dangerous should be held until trial, individuals ought not be held just because they are poor. Not only is such a system unfair, he asserted, it is arguably unconstitutional.

Reform Opponents Raise Logistical, Public Safety Concerns

It should be noted, however, that opposition to the reform proposals does indeed exist, and it was led in the Court of Appeals by former U.S. Solicitor General Paul Clement.

Others voicing disapproval of the suggested changes included the Fraternal Order of Police, bail bond industry members, advocates for victims rights and certain defense attorneys who believe that the absence of bail creates an impression in the minds of some defendants that the charges lodged against them need not be taken seriously.

Widespread failure to appear on the part of criminal defendants is another concern lodged by those speaking out against the bail reform measures currently being debated.

Vote on Proposal’s Fate to Occur in February

Following the six-hour Court of Appeals hearing on the aforementioned proposals, a final vote on the changes was postponed and will not occur until February. An earlier motion to approve the reforms failed to achieve passage, with proponents unable to persuade more than three of the seven jurists to support it.

Legal observers now eagerly await the outcome in Maryland of a debate which continues to rage in jurisdictions across the country.

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