Yesterday, Maryland Attorney General Brian E. Frosh declared that the cash bail system in the state is “likely unconstitutional” in an advice letter sent to several Maryland delegates. The Attorney General’s findings were announced in both the Baltimore Sun and the Washington Post.
In the letter, Frosh maintained that a defendant may still be held in jail until trial for other reasons, such as being a flight risk or for the public’s safety, but holding defendants in jail because they cannot afford to pay cash bail would be considered a violation of the Eighth Amendment of the U.S. Constitution, which prohibits the government from imposing excessive fines or cruel and unusual punishment.
Frosh’s letter comes in response to an inquiry from five House of Delegates members – Erek L. Barron of Prince George’s County, Shelly Hettleman of Baltimore County, Brooke E. Lierman of Baltimore, and Kathleen Dumais and Marc Korman of Montgomery County – who sought the Attorney General’s formal opinion on Maryland’s practice of setting financial conditions for pretrial release.
The question of the role of money bail in the criminal justice system is getting national attention. Civil rights organizations are bringing litigation against jurisdictions all over the United States to challenge existing bail practices, and in many instances the plaintiffs are prevailing. In Maryland, two state-level commissions have already called for Maryland to adopt a pretrial system that uses objective criteria, not money, to make pretrial decisions. The Attorney General’s opinion echoes the findings of these commissions and once again demonstrates that Maryland’s pretrial system is in dire need of reform.
In July, OSI hosted #unconvicted, a photo exhibit documenting the plight of pretrial detainees across Maryland. The exhibit kicked off a years-long statewide campaign that will focus on moving Maryland from a money-based system to a more effective and equitable system that is based on objective criteria, instead of a defendant’s ability to pay.
OSI grantees like Justice Policy Institute (JPI), Power Inside, and Pretrial Justice Institute have been calling for statewide pretrial justice reform for years. But, as Marc Schindler, JPI executive director said in the Post, Maryland has been “behind the curve” on bail reform.
Although the Attorney General’s opinion is not legally binding, it should provide more motivation for decision-makers in Maryland to make real reforms.
“There is no credible research that supports the continued use of money bail,” says Tara Huffman, OSI-Baltimore Director of Criminal and Juvenile Justice. “On the other hand, we do have credible data that shows that Maryland’s current bail system disproportionately impacts people of color and people with limited means. Money shouldn’t play a role in pretrial decisions and it’s time for Maryland to eliminate it.”
