Executive Summary

Bail reform is a topic of controversy in Maryland that has produced competing paths forward. Unfortunately, the two immediate options appear to be diametrically opposed—de facto elimination of bail or its largely unreformed retention—with neither side willing to compromise. Instead, Maryland lawmakers should press pause on any substantial changes to the bail system and study the data more closely before enacting substantial changes. Meaningful and improving reforms require deliberative debate with full information.

This paper finds:

• Bail, under current Maryland statute, is constitutional.
• The elimination of bail as proposed under the pending Court of Appeals’ rules change may, paradoxically, increase the disparities critics charge are endemic to the present system.
• Lawmakers need more and better data before enacting changes to the present system.
• Greater accountability through transparency and data would improve outcomes for defendants, public safety, and the criminal justice system overall.

Introduction

In Maryland, like most U.S. jurisdictions, arrested individuals must be “arraigned” or read the charges laid against them by the government. In addition to the right to an attorney to represent their interests in court, the accused must be given a hearing as to whether they must be detained or released. The common condition imposed on released defendants is bail or a money payment to the court.

Upon paying bail, the defendant is released from custody, but if he should fail to return for future court proceedings, he forfeits the bail or security that he posted, and a warrant likely will be issued for his arrest. Thus, bail functions much like a security deposit, helping to ensure that the accused returns for his day in court. If the defendant cannot afford the set bail, or if the judge denies bail altogether, the accused remains jailed until trial.

How much bail a defendant must post varies significantly from case to case, and has been a subject of political and legal debate for centuries.[1] And that debate still rages today.

In Maryland today, critics of the state’s bail system argue it unfairly burdens defendants financially who can least afford to pay bond to the court.[2]

Many of these critics go further than suggesting changes to the bail system and instead call for bail’s outright elimination.[3]

This paper examines the Old Line State’s bail system and its proposed alternatives in the broader context of their constitutionality, efficiency, and efficacy. It seeks to aide policymakers and advocates in their debate and deliberations on changes to Maryland’s criminal justice system.