Judicial Rules

Appeals Court Decides on Bail Reform

The highest court in Maryland delayed action on January 5th on whether to overhaul the state’s money-based bail system so that most poor defendants do not have to pay bail or are allowed to pay what they can afford. The Appeals Court agreed to meet again on this issue in February. And at that meeting on February 7th, they agreed to change the rule.

The amended rule 4-216 is an important step to make sure that commissioners and trial judges will not set money bail in amounts designed to keep defendants in pretrial detention only because they are too poor to pay a bail bondsman.

But, the rule does not eliminate the need for legislation because, in an important aspect, the Judiciary effectively calls for the Executive branch of government to act. The key provision of the rule states that a “judicial officer [before deciding on pretrial release or detention] shall give consideration to the recommendation of any pretrial release services program that has made a risk assessment of the defendant in accordance with a validated risk tool and is willing to provide an acceptable level of supervision over the defendant during the period of release if so directed by the judicial officer.” (Highlight added.)

What is missing from the Rule? Only 6 out of 24 counties now have “risk assessment tools” and not all are validated; only 13 out of 24 counties have substantial pretrial release services programs. Clearly legislation is needed to give direction to the Executive branch on the topic of risk assessment and pretrial release programs.

So far, two bills have been filed in the Maryland General Assembly seeking to provide guidance on risk assessment and pretrial release programs: SB879/HB1157 (the MAJR bill) and SB880/HB1390.

  1. SB 880 calls on the State to adopt risk screening and to initiate plans for statewide pretrial services.
  2. SB 879 provides plans how pretrial release programs may be established via pilot programs and a “state pretrial resource center” that could provide counties with technical assistance and training; it also offers two other provisions seeking to reduce unnecessary pretrial detention— a) directing judges not to issue “no bond” bench warrants for minor violation of probation cases, and b) directing prosecutors to perform early screening (now delayed until close to the trial dates in many counties) so as to dismiss cases that are insufficient and to refer appropriate cases to diversion, if available, such as mental health treatment, substance abuse treatment, veterans care or mediation.

SB879 and SB880 are compatible and the adoption of both would benefit Maryland taxpayers.