BAIL
Pre-Trial Release and Conditions of Pre-Trial Release
Criminal Procedure §5-101 et seq.
The pre-trial release system creates “a scheme that
guides judges and judicial officers in their decision whether and under what
conditions to release a defendant, while giving them flexibility to ensure (1)
a defendant shows up at trial and (2) the safety of the victim and/or
community.” Wheeler v. State, 160
-
Nature &
circumstances of the offense charged, the nature of the evidence against the
defendant, and the potential sentence upon conviction.
-
Defendant’s prior
record of appearance at court proceedings or flight to avoid prosecution or
failure to appear at court proceedings.
-
Defendant’s family
ties, employment status and history, financial resources, reputation, character
and mental condition, length of residence in the community, and length of
residence in this State.
-
Recommendation of an
agency that conducts pretrial release investigations.
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Recommendation of the
State’s Attorney.
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Any information
presented by the defendant or defendant’s counsel.
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Danger of the defendant
to the alleged victim, another person, or the community.
-
Danger of the defendant
to himself or herself; and.
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Any other factor
bearing on the risk of a willful failure to appear and the safety of the
alleged victim, another person, or the community, including all prior
convictions AND any prior adjudications of delinquency that occurred within
three years of the date the defendant is charged as an adult.
Conditions of Release (Not Exhaustive)
-
Committing the
defendant to the custody of a designee that agrees to supervise the defendant
and assist in ensuring the defendant’s appearance in court.
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Placing the defendant
under the supervision of an appropriate public official.
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Imposing reasonable
restrictions with respect to travel, association, or residence.
-
Requiring the defendant
to post a bail bond, including any of the following:
o Without collateral security
o With specified collateral security
o With the obligation of a insurer or surety in the
full penalty amount
-
Subjecting Defendant to
any other condition reasonably necessary to ensure the appearance of the
defendant, protect the safety of the alleged victim, and ensure that the
defendant will not pose a danger to another person or to the community
-
Imposing, for good
cause shown, conditions necessary to prevent intimidation of a victim or
witness
-
Placing the Defendant
on home detention
Setting pre-trial release
Generally-
A defendant is entitled to be released before verdict
on personal recognizance or on bail, in either case with or without conditions
imposed, unless the judicial officer determines that no condition of release
will reasonably ensure (1) the appearance of the defendant as required and (2)
the safety of the alleged victim, another person, and the community. Rule
4-216(b)
There are some situations where only a judge, not a commissioner, can set pre-trial release (see
“Commissioner” and “Judge” sections)
A defendant charged with a crime punishable by life
imprisonment may be released on bail
or other conditions of release before conviction. CP § 5-102. [But not personal
recognizance, See CP § 5-101(c)(2)]
If the judicial officer determines that the defendant should be released other
than on personal recognizance without any additional conditions imposed, the
judicial officer shall impose on the defendant the least onerous condition or
combination of conditions of release set out [in section (e) on conditions of
release] that will reasonably:
(A) ensure the appearance of the defendant as
required,
(B) protect the safety of the
alleged victim by ordering the defendant to have no contact with the alleged
victim or the alleged victim’s premises or place of employment or by other
appropriate order, and
(C) ensure that the defendant
will not pose a danger to another person or to the community
Rule 4-216 (d)(3)
The judicial officer shall advise the defendant in writing
or on the record of the conditions of release imposed and of the consequences
of a violation of any condition. When bail is required, the judicial officer
shall state in writing or on the record the amount and any terms of the bail. Rule
4-216 (d)(4)
The Rules of Evidence do NOT apply to bail hearings.
Rule 4-216(k)
Step 1: Commissioner
When a Defendant is arrested without a warrant, “the
judicial officer shall determine whether there was probable cause for the
arrest. If there was probable cause, the judicial officer shall implement the
remaining sections of this Rule. If there was no probable cause, the judicial
officer shall release the defendant on personal recognizance, with no other
conditions of release, and the remaining sections of this Rule are
inapplicable.” Rule 4-216(a).
A Commissioner can NOT release a Defendant charged
with:
-
An offense for which
the maximum penalty is death or life imprisonment. Rule 4-216(c)
-
Escaping from a
correctional facility or any other place of confinement in the State. CP §
5-202 (a)
-
As a drug kingpin under
§ 5-613 of the Criminal Law Article. CP § 5-202 (b) (1)
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A crime of violence if
the defendant has been previously convicted:
(i) in this State of a crime of
violence; or
(ii) in any other jurisdiction of a
crime that would be a crime of violence if committed in this State. CP §
5-202 (c)
-
Committing one of the
following crimes while the defendant was released on bail or personal
recognizance for a pending prior charge of committing one of the following
crimes, CP § 5-202(d):[1]
(i) aiding, counseling, or
procuring arson in the first degree (CR § 6-102)
(ii) arson in the second
degree or attempting, aiding, counseling, or procuring arson in the second
degree (CR § 6-103)
(iii) burglary in the first degree (CR § 6-202)
(iv) burglary in the
second degree (CR § 6-203)
(v) burglary in the third
degree (CR § 6-204)
(vi) causing abuse to a
child (CR § 3-601 or § 3-602)
(vii) a crime that relates to a destructive device (CR § 4-503)
(viii) a crime that
relates to a controlled dangerous substance (CR §§ 5-602 through 5-609 or §
5-612 or § 5-613 – generally distribution related)
§
§5-602
Manufacturing, distributing, PWID, or dispensing CDS
§
§5-603 CDS
Distribution Equipment
§
§5-604
Counterfeit CDS
§
§5-605 CDS
Nuisance
§
§5-606 False
Prescription
§
§5-607-9
Penalties for above and repeat offenders
§
§5-612 Volume
Dealer
§
§5-613 Drug
Kingpin
(ix) manslaughter by
vehicle or vessel (CR § 2-209)
(x) a crime of violence.
CP § 5-202(d)
-
Violating a temporary
protective order (FL § 4-505(a)(2)(i)) or a protective order (FL § 4-506(d)(1))
ordering the defendant to refrain from abusing or threatening to abuse a person
eligible for relief. CP § 5-202 (e)(i)
-
Violating an order for
protection (FL § 4-508.1) issued by a court of another state or of a Native
American tribe, if enforceable. CP § 5-202 (e)(ii)
Step 2: Review by
District Court Judge
A District Court judge may:
(1) set bond or bail;
(2) release a defendant on personal recognizance or on a
personal or other bail bond;
(3) commit a defendant to a correctional facility in
default of a bail bond;
(4) order a bail bond forfeited if the defendant fails
to meet the conditions of the bond;
(5) exercise all of the powers of a justice of the peace
under the Constitution of 1867.
CP § 5-205(a)
24 Hour Review
A defendant who is denied pretrial release by a commissioner or who for any
reason remains in custody for 24 hours after a commissioner has determined
conditions of release pursuant to this Rule shall be presented immediately to
the District Court if the court is then in session, or if not, at the next
session of the court. The District Court shall review the commissioner’s
pretrial release determination and take appropriate action. If the defendant
will remain in custody after the review, the District Court shall set forth in
writing or on the record the reasons for the continued detention. Rule 4-216(f)
(1)
Juvenile defendants
If the defendant is a child whose case is eligible
for transfer to the juvenile court pursuant to Code, Criminal Procedure
Article, § 4-202(b), the District Court, regardless of whether it has
jurisdiction over the offense charged, may order that a study be made of the
child, the child’s family, or other appropriate matters. The court also may
order that the child be held in a secure juvenile facility. Rule 4-216(f) (2)
Defendants eligible for release only by a judge
A defendant charged with [an offense listed below] may
not be released by a District Court Commissioner, but may be released before
verdict or pending a new trial, if a new trial has been ordered, if a judge
determines that all requirements imposed by law have been satisfied and that
one or more conditions of release will reasonably ensure (1) the appearance of
the defendant as required and (2) the safety of the alleged victim, another
person, and the community. Rule 4-216(c)
ONLY a judge can release a Defendant charged with:
-
An offense for which
the maximum penalty is death or life imprisonment. Rule 4-216(c)
-
Escaping from a correctional
facility or any other place of confinement in the State. CP §
5-202 (a)
-
As a drug kingpin under
§ 5-613 of the Criminal Law Article. CP § 5-202 (b) (1)
-
A crime of violence if
the defendant has been previously convicted:
(i) in this State of a crime of
violence; or
(ii) in any other jurisdiction of a
crime that would be a crime of violence if committed in this State. CP §
5-202 (c)
-
Committing one of the
following crimes while the defendant was released on bail or personal recognizance
for a pending prior charge of committing one of the following crimes, CP §
5-202(d):[2]
(i) aiding, counseling, or
procuring arson in the first degree (CR § 6-102)
(ii) arson in the second
degree or attempting, aiding, counseling, or procuring arson in the second
degree (CR § 6-103)
(iii) burglary in the first degree (CR § 6-202)
(iv) burglary in the
second degree (CR § 6-203)
(v) burglary in the third
degree (CR § 6-204)
(vi) causing abuse to a
child (CR § 3-601 or § 3-602)
(vii) a crime that relates to a destructive device (CR § 4-503)
(viii) a crime that
relates to a controlled dangerous substance (CR §§ 5-602 through 5-609 or §
5-612 or § 5-613 – generally distribution related)
§
§5-602
Manufacturing, distributing, PWID, or dispensing CDS
§
§5-603 CDS
Distribution Equipment
§
§5-604
Counterfeit CDS
§
§5-605 CDS
Nuisance
§
§5-606 False
Prescription
§
§5-607-9
Penalties for above and repeat offenders
§
§5-612 Volume
Dealer
§
§5-613 Drug
Kingpin
(ix) manslaughter by
vehicle or vessel (CR § 2-209)
(x) a crime of violence.
CP § 5-202(d)
-
Violating a temporary
protective order (FL § 4-505(a)(2)(i)) or a protective order (FL § 4-506(d)(1))
ordering the defendant to refrain from abusing or threatening to abuse a person
eligible for relief. CP § 5-202 (e)(i)
-
Violating an order for
protection (FL § 4-508.1) issued by a court of another state or of a Native
American tribe, if enforceable. CP § 5-202 (e)(ii)
Upon determining to release a defendant to whom [the
above section] applies or to refuse to release a defendant to whom [the above
section] applies, the judicial officer shall state the reasons in writing or on
the record. Rule 4-216(d)(2)
Rebuttable presumption that, if released, a defendant
will flee and pose a danger to another person or the community where Defendant
is charged with:
-
Drug kingpin.CP
§5-202(b)(3)
-
Crime of violence where
there is a prior conviction for a crime of violence (see “No Pre-Trial Release”
section) §5-202(c)(3)
-
Committing one of the
following crimes while the defendant was released on bail or personal
recognizance for a pending prior charge of committing one of the following
crimes, CP § 5-202(d)(4):
(i) aiding, counseling, or
procuring arson in the first degree (CR § 6-102)
(ii) arson in the second
degree or attempting, aiding, counseling, or procuring arson in the second
degree (CR § 6-103)
(iii) burglary in the first degree (CR § 6-202)
(iv) burglary in the
second degree (CR § 6-203)
(v) burglary in the third
degree (CR § 6-204)
(vi) causing abuse to a
child (CR § 3-601 or § 3-602)
(vii) a crime that relates to a destructive device (CR § 4-503)
(viii) a crime that
relates to a controlled dangerous substance (CR §§ 5-602 through 5-609 or §
5-612 or § 5-613 – generally distribution related)
§
§5-602
Manufacturing, distributing, PWID, or dispensing CDS
§
§5-603 CDS
Distribution Equipment
§
§5-604
Counterfeit CDS
§
§5-605 CDS
Nuisance
§
§5-606 False
Prescription
§
§5-607-9
Penalties for above and repeat offenders
§
§5-612 Volume
Dealer
§
§5-613 Drug
Kingpin
(ix) manslaughter by
vehicle or vessel (CR § 2-209)
(x) a crime of violence.
CP § 5-202(d)(4)
No pre-trial release for:
-
Crimes of Violence
where:
o Defendant charged with a crime of violence
o AND Defendant has been previously convicted:
(i) in this State of a crime of violence; or (ii) in any other
jurisdiction of a crime that would be a crime of violence if committed in this
State.
o AND The judge determines that neither suitable bail
nor any condition or combination of conditions will reasonably ensure that the
defendant will not flee or pose a danger to another person or the community
before the trial. §5-202(c)(2)
§
There is a
rebuttable presumption that a defendant in these circumstances will flee and
pose a danger to another person or the community. §5-202(c)(3)
-
Protective order
violations where:
o The Defendant is charged with either:
§
Violating a
temporary protective order (FL § 4-505(a)(2)(i)) or a protective order (FL §
4-506(d)(1)). CP § 5-202 (e)(i)
§
OR violating an
order for protection (FL § 4-508.1) issued by a court of another state or of a
Native American tribe, if enforceable. CP § 5-202 (e)(ii)
o AND the judge determines that neither suitable bail
nor any condition or combination of conditions will reasonably ensure that the
defendant will not flee or pose a danger to another person or the community
before the trial.
-
ANY CHARGE where:
o The judicial officer determines that no condition of
release will reasonably ensure (1) the appearance of the defendant as required
and (2) the safety of the alleged victim, another person, and the community.
Md. Rule 4-216(b)
o The judicial officer is persuaded by clear and convincing evidence that no
condition or combination of conditions of pretrial release can reasonably
protect against the danger that the defendant presents to an identifiable
potential victim and/or to the community. Wheeler v. State, 160
Step 3: Further Proceedings on Pre-Trial
Release
Motion to Re-consider
Pre-trial release
(h) Amendment of pretrial
release order. After a charging document has been filed, the court, on motion
of any party or on its own initiative and after notice and opportunity for
hearing, may revoke an order of pretrial release or amend it to impose
additional or different conditions of release. If its decision results in the
detention of the defendant, the court shall state the reasons for its action in
writing or on the record. A judge may alter conditions set by a commissioner or
another judge.
Md. Rule 4-216
Violation of pre-trial
release
(a) Bench
warrant.—A court may issue a bench warrant for the arrest of a defendant who
violates a condition of pretrial release.
(b) Court action.—After a defendant is presented before a court, the court
may:
(1) revoke the defendant’s pretrial release; or
(2) continue the defendant’s pretrial release with or
without conditions.
CP § 5-213(a)
When case is sent to circuit
court
When conditions of pretrial
release have been previously imposed in the District Court, the conditions
continue in the circuit court unless amended or revoked [on motion of Court or
party]. Md. Rule 4-216 (g)
In determining whether a defendant should be released
and the conditions of release, the judicial officer shall take into account the
following information, to the extent available:
(A) the
nature and circumstances of the offense charged, the nature of the evidence
against the defendant, and the potential sentence upon conviction.
(B) the defendant’s prior record of appearance at court proceedings or flight
to avoid prosecution or failure to appear at court proceedings.
(C) the defendant’s family ties, employment status and history, financial
resources, reputation, character and mental condition, length of residence in
the community, and length of residence in this State.
(D) any recommendation of an agency that conducts pretrial release
investigations.
(E) any recommendation of the State’s Attorney.
(F) any information presented by the defendant or defendant’s counsel.
(G) the danger of the defendant to the alleged victim, another person, or the
community.
(H) the danger of the defendant to himself or herself; and.
(I) any other factor bearing on the risk of a wilful failure to appear and the
safety of the alleged victim, another person, or the community, including all
prior convictions and any prior adjudications of delinquency that occurred
within three years of the date the defendant is charged as an adult.
Rule 4-216 (d)(1)
Protections of victim. –
(1) The
court or a District Court commissioner shall consider including, as a condition
of pretrial release for a defendant, reasonable protections for the safety of
the alleged victim.
(2) If
a victim has requested reasonable protections for safety, the court or a
District Court commissioner shall consider including, as a condition of pretrial
release, provisions regarding no contact with the alleged victim or the alleged
victim’s premises or place of employment.
CP § 5-201(a)
The Rule and the statute together create a scheme
that guides judges and judicial officers in their decision whether and under
what conditions to release a defendant, while giving them flexibility to ensure
(1) a defendant shows up at trial and (2) the safety of the victim and/or
community. The scheme creates rebuttable presumptions that defendants charged
with certain offenses are too much of a risk to society to be released, but
also allows judicial officers some degree of discretion, not solely dependent
on the charged offense, whether to release a defendant if that judicial officer
has been persuaded by clear and convincing evidence that the person is a danger
to society. Wheeler v. State, 160
In fixing bail in respect to
a particular offense before trial, the court may not consider other charges
pending against an accused, except as lawfully provided. It must confine the
fixing of bail to the particular offense for which bail is sought. The court
may, however, consider whether or not an accused has previously given bail for
other offenses and whether or not he has forfeited the same.
Bigley v. Warden,
Conditions of Release
The conditions of release imposed by a judicial
officer under this Rule may include:
(1)
committing the defendant to the custody of a designated person or organization
that agrees to supervise the defendant and assist in ensuring the defendant’s
appearance in court.
(2) placing the defendant under the supervision of a probation officer or other
appropriate public official.
(3) subjecting the defendant to reasonable restrictions with respect to travel,
association, or residence during the period of release.
(4) requiring the defendant to post a bail bond complying with Rule 4-217 in an
amount and on conditions specified by the judicial officer, including any of
the following:
(A) without collateral security.
(B)
with collateral security of the kind specified in Rule 4-217 (e) (1) (A) equal
in value to the greater of $ 100.00 or 10% of the full penalty amount, and if
the judicial officer sets bail at $ 2500 or less, the judicial officer shall
advise the defendant that the defendant may post a bail bond secured by either
a corporate surety or a cash deposit of 10% of the full penalty amount.
(C) with collateral security of the kind specified in Rule 4-217 (e) (1) (A)
equal in value to a percentage greater than 10% but less than the full penalty
amount.
(D) with collateral security of the kind specified in Rule 4-217 (e) (1) equal
in value to the full penalty amount; or.
(E) with the obligation of a corporation that is an insurer or other surety in
the full penalty amount.
(5)
subjecting the defendant to any other condition reasonably necessary to:
(A) ensure the appearance of the defendant as
required,
(B) protect the safety of the alleged victim, and
(C) ensure that the defendant will not pose a danger
to another person or to the community; and
(6) imposing upon the
defendant, for good cause shown, one or more of the conditions authorized under
Code, Criminal Law Article, § 9-304 reasonably necessary to stop or prevent the
intimidation of a victim or witness or a violation of Code, Criminal Law
Article, § 9-302, 9-303, or 9-305.
Md. Rule 4-216 (e)
Court may consider home
detention. --
(1) In accordance with eligibility criteria, conditions,
and procedures required under the Maryland Rules, the court may require, as a
condition of a defendant’s pretrial release, that the defendant be monitored by
a private home detention monitoring agency licensed under Title 20 of the
Business Occupations and Professions Article.
(2) A defendant placed in private home detention under
paragraph (1) of this subsection shall pay directly to the private home
detention monitoring agency the agency’s monitoring fee.
CP § 5-201 (b)
Personal Recognizance
This section shall be
liberally construed to carry out the purpose of relying on criminal sanctions
instead of financial loss to ensure the appearance of a defendant in a criminal
case before verdict or pending a new trial. CP § 5-101(a)
Except where recognizance is
not allowed, if, from all the circumstances, the court believes that a minor or
adult defendant in a criminal case will appear as required for trial before
verdict or pending trial, the defendant may be released on personal
recognizance. CP § 5-101(b)
A defendant may not be released on personal
recognizance if the defendant is charged with:
-
a crime punishable by
death or life imprisonment without parole. CP § 5-101(c)(2)
-
[one of the crimes
listed in §5-202(d)] after having been convicted of [one of the crimes listed
in §5-202(d)]. CP § 5-101(c)(1).
[crimes listed in §5-202(d):
(i) aiding, counseling, or procuring arson in
the first degree (CR § 6-102)
(ii) arson in the second
degree or attempting, aiding, counseling, or procuring arson in the second
degree (CR § 6-103)
(iii) burglary in the first degree (CR § 6-202)
(iv) burglary in the
second degree (CR § 6-203)
(v) burglary in the third
degree (CR § 6-204)
(vi) causing abuse to a
child (CR § 3-601 or § 3-602)
(vii) a crime that relates to a destructive device (CR § 4-503)
(viii) a crime that
relates to a controlled dangerous substance (CR §§ 5-602 through 5-609 or §
5-612 or § 5-613 – generally distribution related)
§
§5-602
Manufacturing, distributing, PWID, or dispensing CDS
§
§5-603 CDS
Distribution Equipment
§
§5-604 Counterfeit
CDS
§
§5-605 CDS
Nuisance
§
§5-606 False
Prescription
§
§5-607-9
Penalties for above and repeat offenders
§
§5-612 Volume
Dealer
§
§5-613 Drug
Kingpin
(ix) manslaughter
by vehicle or vessel (CR § 2-209)
(x) a crime of violence.]
[1] A defendant under this subsection remains ineligible to give bail or be released on recognizance on the subsequent charge until all prior charges have finally been determined by the courts. CP §5-202(d)(2)
[2] A defendant under this subsection remains ineligible to give bail or be released on recognizance on the subsequent charge until all prior charges have finally been determined by the courts. CP §5-202(d)(2)