Maryland's top court made a huge change to one of the criminal justice system's worst practices

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This week, Maryland's highest court approved plans to dramatically overhaul one of the most onerous aspects of its criminal justice system: Making defendants pay money to make bail.


While the new ruling does not end the practice of making defendants unable to pay their bail remain behind bars before their trial, judges are now required to seek out alternate, less punitive measures to guarantee that nonviolent defendants will appear at their court date before they turn to bail. (People the court deems to be dangerous or a flight risk will still have to pay bail.) Or, as a court spokesperson put it: "preference should be given to additional conditions without financial terms."

The seven-member Maryland Court of Appeals approved the ruling unanimously on Tuesday.

"You can't imprison someone for poverty," Maryland Attorney General Brian Frosh explained October, after writing an opinion letter questioning the constitutionality of jailing those who can't make bond. "For one guy, $1,000 bail is no big deal. For somebody else, they might not have 100 bucks, much less $1,000."

This new ruling, scheduled to go into effect on July 1, means that Maryland will become one of a small number of states, including Kentucky and New Jersey, which have overhauled or done away with the bail process entirely, the Washington Post notes.

The Maryland Bail Bonds industry was initially skeptical of efforts to alter the practice for fear that it could end their business, but have since endorsed the final ruling, as it "preserves judicial discretion and allows judges to be judges," a representative explained to the Baltimore Sun.

Maryland Chief Judge Mary Ellen Barbera acknowledged the difficulty of overhauling the bail system, and praised the final ruling to the Sun as "the best possible proposed rule we can expect when we're working with all stakeholders."


In January, former Obama administration Attorney General Eric Holder testified before the Maryland Appeals Court in favor of revising the state's bail system. At the time he characterized Maryland's pretrial system as one which "punishes low-income defendants, rewards wealthier defendants and disproportionately detains racial minorities."

An analysis by Maryland's Office of Public Defender noted by the Sun in early 2017 concluded that over a five year span, more than 17,000 residents had been jailed for five days or more, simply for being unable to pay bail set at $5,000 or less.


Maryland's ruling comes as more legal experts have begun weighing in on whether the practice of jailing defendants unable to post bail is, in fact, a constitutional violation of their 14th amendment rights.