Maryland Attorney General Questions Legality of Bail Amounts

When someone is arrested and is awaiting trial, bail and the ability to pay it is the difference between awaiting trial a free person, or doing it behind bars. Bail is intended to balance two important principles.

The first is that we are innocent unless proven guilty, and thus, someone should not be imprisoned before he or she is convicted unless a danger to the community. The other is to avoid the possibility that someone accused of a crime may run away or flee in an effort to evade a trial. Thus, a system of bail allows someone arrested and awaiting trial to be free before trial, unless a court makes certain findings.

How Bail is Determined

As a general rule, a court will look at a defendant’s criminal background, personal history, and connections to the state when determining whether there will be a bail set. A court can deny bail if the defendant is deemed a flight risk or a danger to society. A court can alternatively grant bail, which the defendant must pay to be free while awaiting trial, or a court can allow a defendant to remain free before trial without paying any bail at all, if the court determines the facts and circumstances warrant a release on the defendant’s personal recognizance.

The Problem With Bail Amounts

Bail is supposed to be a financial “incentive” to require defendants to remain in the court’s jurisdiction before trial. It is not intended to be punishment, or a way to keep someone in jail. But Maryland’s Attorney General recently sent an opinion letter to Maryland’s House of Delegates, saying that the amount of bail courts are setting would likely be deemed unconstitutional because the bail amount is higher than the defendants can possibly pay.

The problem comes when a court awards bail, thus making a determination that a defendant is not a flight risk and can remain free, but then sets the bail amount so high, the defendant can not pay it. The defendant then ends up staying in jail before trial anyway, not because of any finding by the court, but simply because he or she can not afford the bail.

The end result is that those who do not have money end up having their rights to freedom before trial suppressed. The Attorney General’s opinion is that this would be a constitutional violation. He has suggested that courts look to each defendant’s individual situation to determine bail. A “small” bail to one defendant may be a fortune to another, and thus, courts should avoid setting bail amounts unless they have determined they are payable by the defendants.

The letter is not law, but is expected to be used by defense attorneys in challenging bail amounts. It may result in Maryland’s appeals court looking at the issue and making a ruling on the constitutionality of cash bail, and certainly gives a new perspective on the fairness of excessive bail.

If you have been arrested or being charged with a crime, make sure your attorneys are up to date on the most recent legal and constitutional trends. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your case.