- Associated Press - Wednesday, October 12, 2016

BALTIMORE (AP) - Maryland’s system of holding defendants in jail because they can’t pay a cash bail likely would be found unconstitutional, according to an opinion by the state attorney general’s office sent Tuesday.

The office of Attorney General Brian E. Frosh sent a letter to five House of Delegates members who sought Frosh’s opinion saying that judges and court commissioners must consider the accused’s ability to pay before setting bail.

“You can’t imprison someone for poverty,” Frosh said in an interview with The Baltimore Sun (https://bsun.md/2dckn7B). “For one guy, $1,000 bail is no big deal. For somebody else, they might not have 100 bucks, much less $1,000.”

The letter says if bail is out of reach, the courts would find that unlawful. The letter is the attorney general’s office’s prediction, based on prior court rulings, of what the state’s highest court, the Court of Appeals of Maryland, might do if the question comes before them.

“If pretrial detention is not justified yet bail is set out of reach financially for the defendant,” the opinion said, “it is also likely the Court would declare that the bail is excessive under the Eighth Amendment of the U.S. Constitution,” which prohibits the government from imposing excessive fines or cruel and unusual punishment.

Maryland has convened legislative task forces to study the issue of cash bail twice, but hasn’t reached a consensus for major change.

The Washington Post reports (https://wapo.st/2dJXZJ7 ) that 86 percent of felony defendants with bonds in Maryland wait in jail for their cases to be heard because they can’t afford bail, compared to about 47 percent nationally. Studies by the Pretrial Justice Institute have found that the cash bail system disproportionately affects African Americans and Hispanics and defendants awaiting trial in jail are more likely to plead guilty, even if they aren’t, to speed their release.

A spokesman for Gov. Larry Hogan says the administration is reviewing the opinion.

“We’re going to start using it tomorrow morning,” said Paul DeWolfe, the state’s chief public defender. “That’s really a game-changer if the judiciary follows the opinion.”

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