Jail populations in Maryland could fall. Legislators might have to confront an issue they’ve sidestepped. The future of a powerful industry could be in doubt. All are possible results of an opinion issued this week by Maryland Attorney General Brian Frosh, who concluded that keeping people in jail because they can’t afford bail is probably unconstitutional, the Baltimore Sun reports. The opinion calls into question the state’s longstanding practice of letting courts set high bail as a way of keeping some prisoners in jail. If the state’s highest court were confronted with such a case, Frosh warns, it would likely upend the state’s system of pretrial detention.
“Absolutely it’s a big deal,” said Caryn York of the Job Opportunities Task Force. “It’s exactly what the courts, policymakers and other key stakeholders need to get something done.” Frosh does not rule out money bail entirely, but the opinion could weaken some of the institution’s foundations. He wrote that neither a judge nor a commissioner may “impose a financial condition solely to detain the defendant.” He said those court officers must impose the least onerous conditions necessary to ensure that a defendant shows up for trial and to protect victims and public safety. As a state senator before his election as attorney general in 2014, he chaired the Senate Judicial Proceedings Committee for a dozen years and was a staunch critic of Maryland’s money bail system. As attorney general, his opinions could carry greater weight in courts, the legislature, and in public debate.