Baltimore Protests Raise Questions About Excessive Bail, Eighth Amendment Protections

DOWNTOWN_BMORE_1.jpgThe city of Baltimore, Maryland experienced a significant upheaval during the last week of April 2015, and continuing into early May, as residents protested mistreatment by the city’s police department. The incident that sparked the protests, the death of 25 year-old Freddie Gray in police custody, resulted in criminal charges against six police officers on May 1. During the week leading up to the announcement of the criminal charges, however, violence broke out on multiple occasions, resulting in property damage, clashes between protesters and police, and hundreds of arrests. Many arrestees found themselves subject to substantially large bail amounts, which raises the question of how much bail, given the Eighth Amendment’s prohibition on “excessive bail,” is too much. That question, unfortunately, has no simple answer.

One story that gained national attention involved an 18-year-old man seen in photographs smashing the windows and windshield of a Baltimore police car. At the urging of this mother and stepfather, he surrendered to police voluntarily, but he was held on $500,000 bail. According to local media, his family cannot possibly pay this amount. The man is charged with eight offenses, all misdemeanors, including malicious destruction of property and rioting. Malicious destruction of property carries a maximum penalty of three years’ imprisonment under Maryland law if the damage is at least $500. Md. Crim. Law Code § 6-301(b). The severity of a charged offense is one of the main factors in determining bail, so the “rioting” charge may be key to understanding the bail amount.

Most states have a statute specifically defining the criminal offense of rioting. See Tex. Pen. Code § 42.02. Maryland, however, uses the common law definition of rioting, which involves three or more people engaged in an unlawful assembly “to carry out a common purpose in such violent or turbulent manner as to terrify others.” Schlamp v. Maryland, 891 A.2d 327, 334 (Md. Ct. App. 2006), quoting Cohen v. Maryland, 195 A. 532, 534 (Md. Ct. App. 1937). Although the offense is categorized as a misdemeanor, the maximum penalty under state sentencing guidelines is life imprisonment. Md. Sentencing Guidelines Manual v. 7.0, App. A at 18 (Feb. 1, 2015) (PDF file).

The Eighth Amendment to the U.S. Constitution prohibits “excessive bail.” Many state constitutions have similar provisions. See Md. Const. Decl. of Rights, Art. 25; Tex. Const. Art. 1, § 13. The U.S. Supreme Court, however, has interpreted this provision in ways that allow bail amounts that might still seem excessive. It held that bail cannot be “higher than an amount reasonably calculated to” assure that the defendant will appear for trial. Stack v. Boyle, 342 U.S. 1, 5 (1951). It also held, however, that courts may order a defendant held before trial without bail if doing so is in the interest of “community safety.” United States v. Salerno, 481 U.S. 739, 748 (1987).

The Baltimore case presents several difficulties. A defendant typically must request a bail hearing in order to challenge their bail amount. The sheer number of arrestees, and the difficulty they have experienced getting any sort of due process while in custody, makes asserting one’s rights against excessive bail especially difficult. City prosecutors have made no official statements regarding bail amounts, but it would not be surprising if they were to argue a public safety justification for the bail amounts.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

For over 20 years, board-certified criminal defense attorney Michael J. Brown has fought to defend people’s rights against alleged criminal charges in west Texas federal and state courts. To schedule a confidential consultation with an knowledgeable and skilled advocate, contact us today online or at (432) 687-5157.

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Photo credit: By User:Steelplug [Public domain], via Wikimedia Commons.