Former U.S. Attorney General Eric Holder was among those testifying in favor of reforming Maryland’s bail rules to ensure poor and minority defendants are not unfairly penalized during an hours-long hearing before the state’s highest court on Jan. 5.

Former U.S. Attorney General Eric Holder testified in favor of reforming Maryland’s bail rules. (AP Photo/J. Scott Applewhite,File)
Former U.S. Attorney General Eric Holder testified in favor of reforming Maryland’s bail rules. (AP Photo/J. Scott Applewhite,File)

The Court of Appeals heard hours of testimony from people both for and against proposed changes to Maryland’s bail statute—Rule 4-216—which would require judges and court commissioners to consider bail only if it is the “least onerous condition” necessary to compel a defendant’s re-appearance at court and only after an “individualized” assessment of that person’s financial means.

While the purpose of the Maryland bail system is not to detain defendants—unless that person is determined to be a flight risk or to pose a danger to the community—thousands remain in jail despite no determination of their guilt simply because they cannot afford to post bond, supporters of the rule change say.

“People should not be held in jail because they are poor,” Maryland Attorney General Brian Frosh said in his remarks.

Yet, he added, there are thousands who sit in Maryland jails charged with minor offenses and given small bail amounts who simply cannot pay.

“As a result, they sit in jail—sometimes days, sometimes weeks, sometime months—and the consequences are ruinous: they lose their jobs, they lose their homes, they lose their families; they plead ‘guilty’ just to get out and they may get a criminal record they don’t deserve,” Frosh added.

Maryland’s Office of the Public Defender, for example, found that over a five-year period, 17,434 defendants spent at least five days in jail because they could not pay bail amounts of less than $5,000.

In October, Frosh sent a letter to the Court of Appeals’ Standing Committee on Rules of Practice and Procedure urging the changes, saying the way the current system operates is likely unconstitutional, ineffective and too costly. He cited studies showing that it costs up to $1 million per day to house the 7,000-plus people who are detained in jail awaiting trial at any given time in Maryland.

Detractors of the current system said the current rules as applied not only unfairly targets the poor but also racial minorities. For example, in its analysis, the Office of the Public Defender found that the mean bail amount for African-American defendants is 45 percent to 50 percent higher than that of White defendants charged with similar crimes under similar circumstances.

“Today this court has the opportunity to address the injustices inherent in this system that has grown overly-reliant on money bail,” testified Holder, who said the current rules yield results that are “irrational . . . fundamentally unjust . . . and likely unconstitutional.” Maryland’s pretrial system, he added,  “punishes low-income defendants, rewards wealthier defendants and disproportionately detains racial minorities all while unnecessarily costing the state money and failing to advance the state’s important interest in public safety. ”

Former U.S. Solicitor General Paul Clement disagreed, however, saying, “Maryland’s current [bail] system is plainly constitutional.”

It is true, he conceded, that the current rules are “routinely violated,” but “the solution is not new rules; the solution is enforcement of the existing rules and education about what those rules provide,” he added.

Clement, who – according to the Baltimore Sun – was representing the bail bond company Lexington National Insurance Co. at the hearing, said proponents of the rules changes were rightly concerned about unnecessary detention but some had gone beyond that concern and have “begun to vilify the institution of secured bail and the bond industry.”

“If we’re concerned about unnecessary detention then we should be in favor of keeping a robust bond industry available,” he said in his testimony.

The Court of Appeals will vote on the proposed rule changes in February.