Published on 6/1/2022, 2:31:00 PM

Fast facts: Bail Review hearings in Maryland

Maryland bail reviews can be confusing, and often occur within a day of charges being brought. This can leave a person ill prepared for their bail review hearing, which is often handled by a single overworked Public Defender. A bail hearing can be high stakes, so it's important to fully understand what the possibilities are.

This article should help explain some of the basics about bail review hearings in Maryland, along with ways to seek another bail review should an initial request be denied. Posting bail isn't always as simple as it looks on TV, often a family member must coordinate with a criminal defense attorney to ensure a person is released from jail after their bail hearing. If you or a loved one was recently arrested, it's important to contact a criminal defense attorney as soon as possible.

What is a bail review hearing?

A bail review hearing is a Court hearing on a criminal defendant's release conditions while they are pending charges. In Maryland, every Defendant is entitled to a bail review before a Judge, which usually occurs within 24 hours of charges in a District Court, or if its a weekend, on the next available day of Court in District Court.

Bail review hearings might be a person's only shot at release pending their trial, which could be months away, so it's important to secure counsel to represent you at a bail review. Many criminal defense attorneys can offer a limited retainer fee for bail review purposes to ensure a Defendant has an attorney at their review hearing.

How does a bail hearing work?

Most bail hearings are held in the District Court, which is where most criminal charges originate. Police Officers can charge a person with nearly anything; however, they can only bring charges in District Court.

Once the bail hearing is scheduled, a Judge will oversee the hearing, and the Defendant will be represented by a criminal defense attorney, or a public defender. In most jurisdictions, a prosecutor will represent the State's position as to release. The Judge will then set an amount of bail.

Ultimately, a Judge will decide to release a person on some form of money based bail, offer them pretrial services, or hold them without bond at the conclusion of the bail hearing.

Commissioner vs Judge

Before a Defendant sees a Judge, they will first be given the option to have a bail review hearing before a commissioner. Commissioners are not judges or lawyers.

They are a special government employee tasked with conducting initial appearances while a person waits to see a Judge. Commissioners also review charges brought by Police Officers and citizens for probable cause, and can issue arrest warrants.

Commissioner's offices are usually located within detention centers, where they hold their initial appearances. Defendants are entitled to counsel at commissioner bail reviews, and many are granted release long before they see a Judge.

Unlike a Judge, commissioners typically set cash bails, and do not enjoy the many pretrial release options that Judges do. Commissioners shouldn't set a bail that a person cannot afford.

Bail Review Factors Maryland

Bail reviews in Maryland are governed by Maryland Rule 4-216, which lays out a number of factors a Judge must consider when weighing pretrial release.

As a rule of thumb, a Judge must always use the least onerous conditions to ensure a person will appear in court, and is not a danger to the community, the victim, or themselves.

Pretrial release is favored in Maryland, but there are a number of barriers to pretrial release that we will discuss below.

Appearances - will a person appear in court?

A Judge must consider whether a person will appear in Court when weighing their bail conditions. A common consideration with regard to appearances will be prior failures to appear for Court or "FTAs". FTAs are often held against a person, even if they are old, or if there was a justification for a person's failure to appear.

Examples of justifications for for prior FTAs include:

• Incarceration at the time of the Court date in another jurisdiction

• Incorrect addresses

• Incorrect names on charges

• Failure to serve a person with their Court date

In addition to FTAs, other considerations include ties to the community, international connections, and means by which a person could escape the State pending trial. The simple question is, is a person a flight risk? Is their criminal record indicative of someone who will appear in Court? All of this should be argued during the bail hearing.

Dangerousness - Is a person a danger to the community or themselves?

Dangerousness isn't always as simple as it sounds. Many Judges, and Prosecutors have inventive ways of declaring a person a "danger" to another or themselves.

Dangerousness is usually based on the nature of the charges. For example, a person charged with a domestic assault will often be labeled a "danger" to the alleged victim, even if they are in a relationship, and have no prior domestic violence incidents.

Dangerousness can also be inferred generally. For example, a person who is alleged to possess drugs with the intent to distribute, could be labeled as a "danger to the community" based solely on possession of a large amount of drugs.

Dangerousness can also be to oneself, which sounds ridiculous, but is often a justification for holding a person. If a person is alleged to have a serious drug addiction, a prosecutor or Judge can state that a person is a danger to themselves, and might hurt themselves with drugs if released from jail.

The last and most common "dangerousness" consideration is a person's past record. Despite what you may think, almost anything is admissible at a bail review. This includes a person's past criminal record. If that includes serious felony offenses, a Judge could hold a Defendant based solely on their prior record making them a "danger".

Types of Release - Bail vs Bond vs Pretrial

Once a person is charged, there are several different ways that they may leave a jail after a bail hearing. In Maryland there are several different types of release a Judge may authorize to include:

1. Personal Recognizance - "PR"

Personal recognizance is a long way of saying release with no strings attached. A person given PR is released from jail without any need to post bail, or to comply with pretrial release conditions, other than those stated by a Judge.

2. Unsecured Personal Bonds

An unsecured bond is similar to personal recognizance; however, a person must sign a promise to pay a money bail, if they fail to appear in their case. Unsecured personal bonds are the lowest form of bail in Maryland, because they do not require any posting of actual bond, rather just a promise to pay if a person fails to appear at Court.

3. Secured Personal Bonds

Secured personal bonds are what is traditionally referred to as a "money bond". Maryland, like many other States, has adopted some form of "bail reform". As such, money bonds are much less prevalent than they used to be.

Commissioners do sometimes award a money bail as a condition of release; however, judges are hesitant to give out money bail.

Money based bails are supposed to be "attainable" for a person, meaning that a Judge should not set a bail outside of a person's ability to pay. If a money bail is set, a Judge may set a flat cash only amount, a percentage based bail (like $5,000, 10%, which means a person must post $500), or allow a person to use a surety. A district court judge should not set a money bail a person cannot afford.

A surety is colloquially referred to as a "bondsman" although it may be difficult to find a bondsman as their services are MUCH less common than they used to be.

4. Pretrial release

Pretrial release is the most common form of release given in criminal cases in Maryland. Each jurisdiction has their own form of pretrial, which is usually administered by employees of the local detention center.

Pretrial release often has different levels, which could require weekly check-ins, drug screening, and even GPS monitoring. If released on bail to pretrial services, a person usually requires a local address confirmed by a family member, which is relayed to the Court.

5. Private home monitoring.

Over the last few years, there has been an increasing number of private home monitoring companies that offer pretrial release services.

Most local "pretrial" units are over burdened, and can take days or weeks to find necessary equipment to supervise a detainee pending trial.

In some jurisdictions, a person may be able to take advantage of private home monitoring pending their trial date, which could include a curfew, or full on home detention administered by a private agency.

A criminal defense attorney should know local private home monitoring companies and can usually get a person "pre-approved" ahead of their bail review hearing.

Initial Appearance

An initial appearance is typically a person's first bail review hearing Maryland, which is held within 24 hours of their charge, or the next day the Court is open if it's a holiday or weekend. These usually occur in District court, before a District court judge who will set an amount of bail, or release a Defendant from jail.

A defense attorney should request a bail, and can call upon a family member, or a witness during the bail hearing. They should argue a person is not a danger, and will appear at Court if given a bail.

Bail review hearings are often the most important hearing for a Defendant, as it could be a person's only chance at release before their Court date, which might be months away.

How Long After I'm Arrested Will the Bail Hearing Be Scheduled?

A bail review hearing should take place as soon as possible, within the next court day of a persons' charges. Each jurisdiction in Maryland is different.

Some of the busier jurisdictions have a "cut off" time the night before, after which a person could be held an additional day if they do not see a commissioner early enough in the night proceeding a court day.

There are also additional reasons that a person's bail review may be delayed including hospitalization, suicide watch, and level of intoxication.

Do I need a lawyer for my bail hearing?

The simple answer to this is YES, you need a lawyer for your bail review. Most lawyers will offer a free consultation; however, many charge for a jail visit. A defense attorney will be crucial in asking for a bail, or assisting your family with the process of how to post bail.

Many attorneys and their law firm will take after hours calls, as most bail hearings are the morning after charges are brought the night before. During these calls, a person can request legal advice, and give an idea if they've been charged with a crime that might entitle them to a preliminary hearing.

Second Bail Review Maryland

If a person's bail is set at "HOLD WITHOUT BOND", then they may want to seek a second bail review and push for their release.

A criminal defense attorney, through their law firm, may petition the Court for a second bail review hearing to request a bail.

This can be a tricky process, as a person is not automatically entitled to an additional bail review hearing. First, an attorney must convince a Court that a second review is necessary, based upon arguments like a change in circumstances in the case. Discuss the viability with your attorney, who will give you legal advice about a second bail review hearing.

Change in circumstances

To request a second bail review, a criminal defense lawyer may be asked to show a "change in circumstances". Changes in circumstances can come at various stages in a case, for a wide variety of reasons.

Some of the common changes in circumstances include:

1. Reduction of charges at a preliminary hearing

2. New housing options for a person that makes them eligible for pretrial services

3. Approval for private home monitoring.

4. Victim/Witness change in story or recanting.

5. Receipt of discovery showing viable defenses

6. Health issues that place a person at risk if detained

7. Eligibility for a drug treatment program

While there is no legal requirement for a change in circumstances, some Courts will refer to the lack of a change in denying a request for a bail hearing.

Habeas Corpus

If a second bail hearing motion is denied, often a criminal defense lawyer will recommend filing a habeas corpus. A habeas corpus is a civil action a State agent who holds the defendant in custody. Typically this will be the warden of the detention center where a person is held.

A criminal defense lawyer may file a petition of habeas corpus alleging that a person is illegally detained, and ask the court to hold a bail review, or review a Defendant's bail status.

A habeas petition must comply with Maryland rule 15-302, and can be denied by a Judge if they find the petition insufficient.

The ultimate goal of a habeas corpus petition is often a second or third review of bail, usually held before a Circuit Court Judge. The same bail review analysis from above would apply; however, a different Court would be reviewing a Defense attorney's arguments.

Finding a Maryland Bail Review Lawyer

Finding a lawyer for a bail review can be difficult, as the hearing is scheduled on short notice, and arrests often take place after business hours. Most law firms, like FrizWoods offer 24/7 attorney client consultations.

Bail hearings are usually set in the morning of the next day, which might conflict with a lawyer's schedule. The Court may be willing to postpone the hearing for a day, or the attorney may be able to recommend another lawyer who is available.

If all else fails, the Public Defender can represent a person at their bail review hearing so long as they apply for their services.

Has your loved one been incarcerated? Call us anytime and we can discuss how we can help with a bail review. All of our calls with an attorney are protected by an attorney client relationship.