The criteria for bail has been changed because Attorney General Frosh found that the system of cash bail is unfair to minorities and the poor. Our Attorney General has been a champion for those in the State who are without power and who areb unfairly targeted, wither by the courts or big pharma, or big business. His work to revise this system is to be commended, and as a result the Chief Judge of the District Court set forth a set of rules to be used to set bail. The Court of Appeals followed that up with a Rule where cash is no longer king, and is a last resort. By cash I mean having to pay a bondsman up to 10% of the bail amount.
Interestingly, there was a comfort for judges to set a high bail for serious crimes. Telephone number size bails seemed to assuage the bench and the public. Unless you were charged with murder or rape, you were likely to have a bail set. If your family was fortunate to own real estate in Maryland, part or all of the bail could be posted by pledging the property.
Now that is not the case. The way the new Rule is practiced by the bench, it is an all or nothing proposition for release. Since if you are “entitled” to bail the least onerous conditions are to be set, Pre-Trial Release is the preferred method. It requires monitoring by the Pre-Trial Release Division and they or the prosecutor can apply to have the release revoked for good cause. However, if you are deemed a danger to public safety you are denied bail. No longer is a $250,000.00 or $500,000.00 bail set to try to keep you in jail while still honoring the 8th Amendment prohibition on excessive bail. No bail is as excessive as you can get as you cannot get out of jail.
No bail is now the rule rather than the exception. The other day at District Court Bail Review, if the accused’s crime presented a “danger” the accused was denied bail. No matter how intrinsically shallow the evidence was in the Statement of Probable Cause, if there was a “threat to Public safety”, then there was no bail. One judge has remarked to me that either you get released on your own recognizance or you are denied bail. There does not seem to be a middle ground.
The change that was first advocated by the Attorney General and adopted by the Court of Appeals was and is the right thing to do. Unfortunately it has resulted in cases of injustice because it is easier to justify keeping someone in jail as opposed to setting terms of release.