Maryland Attorney General, Brian Frosh, responds to a request from the Maryland House of Delegates regarding pretrial detention.
"It is my view that the Court of Appeals would conclude that the State's statutory law and court rules should be applied to require a judicial officer to conduct an individualized inquiry into a criminal defendant's ability to pay a financial condition of pretrial release. Although it is less clear that defendants have a constitutional right to an individualized inquiry, constitutional considerations provide further support to the requirement of an individualized inquiry. It is also my view that, while imposing a financial condition is allowed under current State law and is not unconstitutional in and of itself, the Court of Appeals would likely hold that, in the event a judicial officer determines that pretrial detention is not justified to meet the State's regulatory goals, a judicial officer may not impose a financial condition set solely to detain the defendant.
Conditions of pretrial release must instead be the least onerous to reasonably ensure the appearance of the defendant as required, protect the safety of the victim, or ensure that the defendant will not pose a danger to another person or the community. As a result, setting the bail in an amount not affordable to the defendant, thus effectively denying release, raises a significant risk that the Court of Appeals would find it violates due process. If pretrial detention is not justified yet bail is set out of reach financially for the defendant, it is also likely the Court would declare that the bail is excessive under the Eighth Amendment of the U.S. Constitution and Article 25 of the Maryland Declaration of Rights."#Legislation #Litigation #Bail