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How Bail Works in Maryland

Recently, I started representing people who cannot afford attorneys but are entitled to be represented at initial hearings in Maryland jails. The initial hearing takes place right after someone is arrested. They are brought to the jail by the police, either on a new charge, on an arrest warrant for a case that was already filed, or on a bench warrant for missing court in a current case. They have the option of waiving their right to counsel and proceeding on their own; calling their private attorney, if they have one; or seeing if they qualify for a court-appointed attorney - me - who will represent them only for this hearing.

District Commissioners, not judges, are stationed at each local jail and conduct the initial hearings. In Montgomery County, the Commissioner's office is staffed 24/7 and there are shifts for appointed attorneys, like me, to cover all those hours. My preferred shift is 4pm-midnight. The preference is more about the way it fits into my schedule - it's not that there's anything particularly different about the type of crimes or people brought in at any hour here at the jail.

At the initial hearing, the Commissioners generally have three options. They can release our clients 1) on personal recognizance, which is basically just their promise to return to court whenever the next date is scheduled; 2) on an unsecured personal bond (UPB), which is basically a monetary amount held over the head of the client but only owed to the court if the client doesn't come to court on the next court date; or 3) on a secured bond of any amount - usually ranging from $500 - $150,000 - that must be paid in order for the client to be released.

The Commissioner can make the bond payable to the court in the amount of 10% (or another percentage they choose, though 10% is standard) or payable at 100% of the bond. In the "100% cases" the client can call a bail bondsmen who usually charges about 10% to the client in order to guarantee the other amount to the court. They often also set up payment plans if the client can't afford the 10% upfront. If the bond is paid to the court, the money is returned so long as the client appears at the next court date. If the bond is paid to a bail bondsmen, that money is gone forever whether the client shows up to court or not.

If a client cannot make bail, they will see a judge the following day at 1pm. That judge will review the charges and make an independent determination of bail or release conditions. The judge can decide to lower the amount the Commissioner set, raise it, leave it the same, or release the client without bail.

When I meet with a client I get their general background information, based on a questionnaire the Commissioner is required to enter into their computer system. We talk about any prior court involvement and whether they've ever failed to appear for court dates before. I can generally give the client a sense of what I think the Commissioner will do in the case depending on how serious the charge is and their history of complying with previous court orders or dates.

A prosecutor from the State's Attorneys' office is also there and argues for their version of what would be fair. Sometimes I truly don't understand how they make their calculations on what bond to ask for. The purpose of bail is supposed to 1) ensure that the client returns to court when told to and 2) ensure the safety of the community and the complaining witness (i.e., victim), if any. To me, if someone has either never failed to appear or it was a long time ago and the current case doesn't involve violence, I think they should be released on their own promise to return to court. Or at most on a UPB that would only be owed if they missed court the next time.

Tonight, the State's Attorney asked for a secured bond of $2,000 for a first-time offender charged with a non-violent crime. And they wanted the client to report to Pretrial Services which is essentially probation before your court date, to make sure you're complying with any rules set by the Commissioner. Pretrial is often ordered and although I think it's used too much in Maryland, I understand its purpose.

But a $2,000 secured bond for an 18 year old, high school senior basically charged with shoplifting? Wow. I asked for straight PR (release without paying money, just a promise to return to court). Thankfully, the Commissioner decided in my client's favor and released her, although he did make her report to Pretrial Services. I try to respect what the State's Attorney's role is in these hearings but these types of cases make me wonder how much time they really put into evaluating this particular client's risk of either not coming to court or making the community unsafe.

You don't always get a win for your client, though. Sometimes I know it will be an uphill battle because of my client's prior history with the court system or the nature of the charge being filed against him (or her). Although we're not deciding guilt or innocence during the bail hearing, the Commissioner will review the allegations in the case and use that as a factor in their release determination - especially when violent conduct is alleged.

In those cases it can be difficult not to feel like just another cog in the system that is set up to keep people locked up if they can't pay. To feel like just another "government lawyer" who, despite my efforts to help speak for the powerless, lacks any real power myself. Who needs to maintain a good relationship with the system we're working within. Who knows the "same old excuses" aren't going to fly with certain Commissioners who've heard it all before. Who knows second (or third or fourth) chances are rare and most people don't have the same belief in our fellow humans' capacity for change.

Ultimately, regardless of the hearing result, I hope my clients always walk away knowing that someone listened to them, helped them understand the process, and fought for them. Because everyone deserves a lawyer who actually cares what the outcome is. Everyone deserves a lawyer who will make those arguments and "excuses," who will do their very best to make the system work this time. And I hope I always show my clients that I am that type of lawyer.

Because some days, like today, being that type of lawyer means a young high school student will be sleeping in her own bed tonight. And I can be proud that I played some small role in that.

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