Aaron Bradds & Samuel Hill v. Dionne Randolph, Warden, Nos. 77 & 78, September 

Term 2018. Opinion by Nazarian, J. 

BAIL REVIEW – REVISIONS TO MARYLAND RULES 2-416 AND 2-416.1

Pursuant to revised Maryland Rules 2-416 and 2-416.1, reviewing courts must determine 

first whether defendants represent a flight risk or a danger to victims, others, or society. If 

so, they must be held pending trial. If not, they must be released, subject to appropriate 

conditions. The court should impose the least onerous possible conditions of release, 

beginning with non-financial conditions. Financial conditions are available a last resort, 

but may not be imposed unless the court undertakes an individualized analysis of the 

defendant’s ability to pay, and may not impose financial conditions the defendant has no 

chance of meeting.
Circuit Court for Baltimore City

Case Nos. 24H18000063 and 

24H18000072

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

Nos. 77 & 78

September Term, 2018

______________________________________

AARON BRADDS AND SAMUEL HILL

v.

DIONNE RANDOLPH, WARDEN

______________________________________

Nazarian,

Leahy,

Krauser, Peter B.

 (Senior Judge, Specially Assigned),

JJ.

______________________________________

Opinion by Nazarian, J.

______________________________________

Filed: September 28, 2018
I’ve got clean away but I’ll be back some day,

just the combination will have changed 

Someday they’ll catch me, to a chain they’ll attach me,

but ‘til that day I’ll ride the old crime wave 

And if they try to hold me for trial,

I’ll stay out of jail by paying my bail 

And after I’ll go to the court of appeal saying 

“You’ve done me wrong,” it’s the same old song forever.1

We start with first principles: people who have been arrested are presumptively

innocent until proven guilty beyond a reasonable doubt, and normally should be released 

pending trial, subject to appropriate conditions, unless they pose flight risks or danger to 

the public. As a cultural matter, though, we tend to shorthand pretrial release conditions 

with the term “bail,” and to assume that release requires some sort of payment or financial 

commitment. We have learned over time that when courts rely primarily or

overwhelmingly on financial pretrial release conditions, many defendants remain 

incarcerated when they shouldn’t, merely because they can’t post cash or a bond (while 

wealthier defendants, who might be just as dangerous or pose equal flight risks, can secure

their freedom with money). And beyond the obvious deprivations of liberty, overreliance 

on financial conditions places lower-income people at a disadvantage in defending their 

cases and distorts their calculus as they consider whether to plead guilty or go to trial. 

In 2017, the Court of Appeals’s Standing Committee on Rules and Procedure 

recommended revisions to the Maryland Rules governing pretrial release. The Court of 

Appeals adopted the revisions, which went into effect on (and apply to all actions 

commenced on or after) July 1, 2017. Stated generally, the new Rules directed trial courts 

 

1 GENESIS, Robbery, Assault, and Battery, A TRICK OF THE TAIL (Charisma Records 1976).
2

to detain defendants who pose flight risks or who are dangerous, and to release everyone 

else subject to non-financial conditions, except as a last resort. Even then, though, the Rules 

require courts to take the defendant’s financial circumstances into account and prohibit

financial conditions a defendant has no hope of meeting.

The appellants in these consolidated cases are criminal defendants who filed 

petitions for writs of habeas corpus in the Circuit Court for Baltimore City after the District 

Court ordered them held in lieu of bonds that, they say, they cannot afford. The appellants 

argue that the habeas court erred in denying the petitions and that the bonds set for them 

violated the revised Maryland Rules. The State agrees that the court should at least have 

held a hearing before denying the habeas petitions and asks that we vacate the denials and 

remand for a hearing. 

After argument in this Court on June 11, 2018, we issued an order reversing the 

judgments and remanding both cases to the circuit court with directions to grant the 

petitions for writs of habeas corpus and to order new bail reviews pursuant to Maryland 

Rule 4-216.1, and we directed the mandate to issue forthwith. In this opinion, we explain 

our decision.

I. BACKGROUND

A. The Maryland Rules Governing Bail Review.

1. Before: The Old Rule 4-216

The Maryland Rules long have recognized that decisions about whether and on what 

terms to release defendants before trial are discretionary, and courts have always had broad 

authority to impose appropriate conditions. Before July 1, 2017, Rule 4-216 provided 
3

generally that defendants were entitled to release on personal recognizance or on bail, with 

or without conditions, unless the court determined that no condition would ensure his or 

her appearance or safeguard the public. The Rule directed judicial officers to consider a 

variety of factors, required them to impose the least onerous conditions that would ensure 

the defendant’s appearance and protect the public, and authorized them to place defendants 

under supervision, restrict their movement, set bond, or to impose other appropriate 

conditions: 

c) Defendants eligible for release by commissioner or judge.

In accordance with this Rule and Code, Criminal Procedure 

Article, §§5-101 and 5-201 and except as otherwise provided 

in section (d) of this Rule or by Code, Criminal Procedure 

Article, §§ 5-201 and 5-202, 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. 

* * *

e) Duties of judicial officer. (1) Consideration of factors. 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; 
4

(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 attorney; 

(G) the danger of the defendant to the alleged victim, 

another person, or the community; 

(H) the danger of the defendant to him or herself; 

(I) 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. 

(2) Statement of reasons – When required. Upon determining 

to release a defendant to whom section (c) of this Rule applies 

or to refuse to release a defendant to whom section (b) of this 

Rule applies, the judicial officer shall state the reasons in 

writing or on the record. 

(3) Imposition of conditions of release. 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 

lease onerous condition or combination of conditions of release 

set out in section (g) of this Rule 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 the defendant will not pose a danger to another 

person or to the community. 

(4) Advice of conditions; consequences of violation; amount 

and terms of bail. 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. 
5

f) 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; 

(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 

Article, § 9-304 reasonably necessary to stop or prevent the 
6

intimidation of a victim or witness s or a violation of Code, 

Criminal Law Article, § 9-302, 9-303, or 9-305. 

Md. Rule 4-216. It shouldn’t be, and isn’t, surprising that a Rule requiring complex, onthe-fly, multi-factorial, discretionary decisions would lead to a range of results across the 

thousands of bail review hearings each year across the State. But it emerged over time that

a disproportionate number of indigent defendants—disproportionately African-American 

and Hispanic men2—were being held before trial for no reason other than being unable to 

afford bail,

3

and even though their charges, if proven, often would result solely in fines or 

less than a year in jail.

4

On October 11, 2016, the Maryland Office of the Attorney General issued an advice 

letter (the “Letter”) opining to certain members of the Maryland General Assembly that 

Rule 4-216, as it was being applied, violated both the due process rights of defendants and 

the Constitutional prohibition against excessive bail. The Letter contended that it was 

unconstitutional for judicial officers to “impose a financial condition set solely to detain 

 

2 See Why We Need Pretrial Reform, PRETRIAL JUSTICE INSTITUTE, 

http://www.pretrial.org/get-involved/learn-more/why-we-need-pretrial-reform/ (last 

visited Aug. 13, 2018) (quoting Jonah B. Gelbach & Shawn D. Bushway, Testing for Racial 

Discrimination in Bail Setting Using Nonparametric Estimation of a Parametric Model, 

SSRN (Aug. 20, 2011), https://dx.doi.org/10.2139/ssrn.1990324).

3 See, e.g., Thomas H. Cohen and Brian A. Reaves, Pretrial Release of Felony Defendants 

in State Courts 7 (Washington D.C.: Bureau of Justice Statistics, 2007), 

https://www.bjs.gov/content/pub/pdf/prfdsc.pdf.

4 R. Schauffler, R. LaFountain, S. Strickland, K. Holt, & K. Genthon, Examining the Work 

of State Courts: An Overview of 2015 State Court Caseloads, NATIONAL CENTER FOR 

STATE COURTS (2016), 

http://www.courtstatistics.org/~/media/Microsites/Files/CSP/Criminal/PDFs/EWSC2016-CRIM-Page-2-Comp.ashx. 
7

the defendant,” particularly if “pretrial detention is not justified to meet the State’s 

regulatory goals . . . .” It opined as well that “[c]onditions of pretrial release must instead 

be the least onerous to reasonably ensure the appearance of the defendant as required, 

protect the safety of the victim, or ensure that the defendant will not pose a danger to 

another person or the community.” If, however, a court found that cash bail was the least 

onerous means of ensuring a defendant’s appearance, the Letter argued that the judicial 

officer should be required on the record “to conduct an individualized inquiry into a 

criminal defendant’s ability to pay a financial condition of pretrial release.” Following this 

Letter, the Attorney General formally requested the Court of Appeals’s Standing 

Committee on Rules of Practice and Procedure (the “Rules Committee”) to investigate the 

concerns it expressed in its letter and consider amendments to the Maryland Rules. 

The Rules Committee then took up the issue. After a process we will detail next, the 

Committee voted in favor of recommending the proposed revisions to the Court of Appeals 

and submitted them to the Court in its 192nd Report (the “Report”). The Report stated that 

the modified Rule 4-216.1 in particular would “provide clearer guidance to judicial officers 

regarding the manner in which certain core principles intended to govern decisions 

regarding the pretrial release of arrested individuals” and help prevent defendants from 

being “incarcerated, prior to trial, for no reason other than poverty.” 

2. After: Cash Bail Reform and the New Rules.

After receiving the Letter, the Rules Committee assigned the proposed revisions to 

the Criminal Rules Subcommittee (the “Subcommittee”). The Subcommittee reviewed 
8

materials submitted by the Attorney General,

5

the Office of the Public Defender,6the bail 

industry,7and other stakeholders,8then held a public comment hearing. 

 

5 Letter from Brian E. Frosh, Md. Att’y Gen., to the Hon. Alan M. Wilner, Chair, Standing 

Comm. on Rules of Prac. and Proc. 1–2 (Oct. 25, 2016), 

http://www.marylandattorneygeneral.gov/News%20Documents/Rules_Committee_L 

etter_on_Pretrial_Release.pdf.

6 Arpit Gupta, et al., The High Cost of Bail: How Maryland’s Reliance On Money Bail 

Jails The Poor And Costs The Community Millions, MARYLAND OFFICE OF THE PUBLIC 

DEFENDER (2016), 

http://www.opd.state.md.us/Portals/0/Downloads/High%20Cost%20of%20Bail.pdf.

(hereinafter “OPD Report”).

7 See Paul Clement et al., Constitutionality of Maryland Bail Procedures, KIRKLAND &

ELLIS LLP (Oct. 26, 2016), 

http://home.ubalt.edu/id86mp66/PTJC/SymposiumReadings/Kirkland_White_Paper_con

stitutionality.pdf (hereinafter “Bail Industry Report”); see also Letter from Paul Clement 

& Michael McGinley, Kirkland and Ellis LLP, to Hon. Alan Wilner, Chair, Standing 

Committee on Rules of Practice and Procedure (Nov. 17, 2016) (on file with Committee); 

Letter from Paul Clement & Michael McGinley, Kirkland and Ellis LLP, to Hon. John 

Morrissey, Chief Judge, District Court of Maryland (Nov. 2, 2016) (on file with 

Committee); Letter from Paul Clement & Michael McGinley, Kirkland and Ellis LLP, to 

Hon. Brian Frosh, Attorney General, Maryland (Nov. 15, 2016) (on file with Committee).

8 See Letter from Douglas Colbert, Zina Makar, & Colin Starger, University of Maryland 

School of Law & University of Baltimore School of Law, to Hon. Alan Wilner, Chair, 

Standing Committee on Rules of Practice and Procedure (Nov. 17, 2016) (on file with 

Committee); Letter from Brian Frank, Criminal Justice Policy Program at Harvard Law 

School, to Hon. Alan Wilner, Chair, Standing Committee on Rules of Practice and 

Procedure (Nov. 17, 2016) (on file with Committee); Letter from Lt. Gov. Boyd 

Rutherford, State of Maryland, to Hon. Alan Wilner, Chair, Standing Committee on Rules 

of Practice and Procedure (Nov. 17, 2016) (on file with Committee); Letter from Paul 

Clement & Michael McGinley, Kirkland and Ellis LLP, to Hon. Alan Wilner, Chair, 

Standing Committee on Rules of Practice and Procedure (Nov. 17, 2016) (on file with 

Committee); Letter from Debra Gardner, Public Justice Center, to Hon. Alan Wilner, Chair, 

Standing Committee on Rules of Practice and Procedure (Nov. 17, 2016) (on file with 

Committee); Letter from Michael Twigg, Wes Adams, Laura Martin, Joe Riley, Brian 

DeLeonardo, Anthony Covington, William Jones, Charlie Smith, Lisa Welch, Joseph 

Cassilly, Dario Broccolino, Harris Murphy, Lance Richardson, Dan Powell, Scott 

Patterson, Charles Strong, Ella Disharoon, Beau Oglesby, State’s Attorneys for Allegany, 

Anne Arundel, Calvert, Caroline, Carroll, Charles, Dorchester, Frederick, Garrett, Harford, 

Howard, Kent, Queen Anne’s, Somerset, Talbot, Washington, Wicomico, Worcester 
9

The Attorney General urged the Subcommittee (and later the Committee) to 

recommend the proposed revisions because defendants were being held “in pretrial 

detention solely because they lack the financial resources to post a monetary bail.” He 

stated that the number of people detained prior to trial had been increasing, and that studies 

had shown that the financial inability to post bail operated “in a manner inconsistent with 

State and federal law, ineffective at addressing public safety concerns, disproportionately 

burdensome to communities of color, and inefficient in its use of State and local resources.” 

He cited studies contending that judicial officers often failed to consider statutorily 

mandated conditions for pretrial release, including the defendant’s “employment status and 

history” and “financial resources.”9 And, he argued, those same studies found no 

 

Counties, to Hon. Alan Wilner, Chair, Standing Committee on Rules of Practice and 

Procedure (Nov. 17, 2016) (on file with Committee); Letter from Thomas V. Mike Miller, 

Jr. and Robert Zirkin, Maryland General Assembly, to Hon. Alan Wilner, Chair, Standing 

Committee on Rules of Practice and Procedure (Nov. 15, 2016) (on file with Committee); 

Letter from Mary Lou McDonough, Director, The Prince George’s County Government 

Department of Corrections, to Hon. Alan Wilner, Chair, Standing Committee on Rules of 

Practice and Procedure (Nov. 3, 2016) (on file with Committee). 

9 The Abell Foundation, The Pretrial Release Project: A Study of Maryland’s Pretrial 

Release and Bail System, THE ABELL REPORT (Sept. 12, 2001), 

https://www.abell.org/sites/default/files/publications/hhs_pretrial_9.01(1).pdf (hereinafter 

“200l Abell Report”); Shirleen M. Pilgrim, Claire E. Rossmark, & Christine K. Turner, 

Maryland Task Force to Study the Laws & Policies Relating to Representation of Indigent 

Criminal Defendants by the Office of the Public Defender, DEPARTMENT OF LEGISLATIVE 

SERVICES, OFFICE OF POLICY ANALYSIS (December 13, 2013), 

https://msa.maryland.gov/msa/mdmanual/26excom/defunct/html/31represent.html; James 

Austin and Johnette Peyton, Maryland Pretrial Risk Assessment Data Collection Study,

JFA INSTITUTE 36–59 (2013), 

http://goccp.maryland.gov/pretrial/documents/2014-pretrial-commission-final-report.pdf; 

Commission to Reform Maryland’s Pretrial System, Final Report, GOVERNOR’S OFFICE 

OF CRIME CONTROL AND PREVENTION (2014), 
10

relationship between a pretrial detainee’s perceived risk and the bond amount set.10 One 

study found an inverse relationship between bail amounts and the risk to public safety, that 

bail was set higher for low-risk defendants than for moderate- and higher-risk defendants.

11

Studies in other jurisdictions with wealth-based pretrial systems found that nearly half of 

the most dangerous defendants were able to post bail and reenter the community without 

monitoring or supervision by courts.12 Conversely, the Attorney General pointed to other 

jurisdictions such as the District of Columbia,13 Kentucky,14 and Colorado,15 that focused

on pretrial services instead of cash or bond bail. Those systems had higher rates of pretrial 

release and subsequent court appearances, and the rate of arrests for new criminal activity 

while on pretrial release decreased. He argued that cash bail systems disproportionately 

 

http://goccp.maryland.gov/pretrial/documents/2014-pretrial-commission-final-report.pdf

(hereinafter “2014 Commission Report”); John Clark, Pretrial Justice Institute, Finishing 

the Job: Modernizing Maryland’s Bail System, THE ABELL REPORT, Vol.29, No.2 (June 

2016), https://abell.org/sites/default/files/files/cja-pretrial616(1).pdf (hereinafter “2016 

Abell Report”).

10 See supra n. 9.

11 See 2014 Commission Report, supra n. 9.

12 Laura and John Arnold Foundation, Developing a National Model for Pretrial Risk 

Assessment 1 (November 2013), 

https://www.arnoldfoundation.org/wp-content/uploads/2014/02/LJAF-researchsummary_PSA-Court_4_1.pdf.

13 2014 Commission Report at 24, supra n. 9; Ann E. Marimow, When it comes to pretrial 

release, few other jurisdictions do it D.C.’s way, WASHINGTON POST (July 4, 2016), 

https://www.washingtonpost.com/local/public-safety/when-it-comes-to-pretrial-releasefew-other-jurisdictions-do-it-dcs-way/2016/07/04/8eb52134-e7d3-11e5-b0fd073d5930a7b7_story.html.

14 2016 Abell Report at 10, supra n. 9.

15 Id. at 11.
11

affect people of color, whose median household incomes are the lowest in the country. And 

the 2016 Abell Report revealed that pattern in Maryland: corrections records from 

Baltimore City, Prince George’s County, and Baltimore County revealed that AfricanAmerican males comprise the bulk of pretrial detainee populations, and many are being 

held on small bail amounts:

The economic disparities unleashed by the wealth-based bail 

system fall most heavily on racial minorities. Studies have 

consistently shown that African-American defendants have 

higher bond amounts and are detained on bonds at higher rates 

than white defendants, a factor contributing to the 

disproportionate confinement of persons of color. In Maryland, 

African-Americans comprise roughly 30 percent of the general 

population but make up 70 percent of prisoners. In Baltimore, 

African-Americans comprise about 60 percent of the city’s 

residents, but 90 percent of Baltimore jail inmates.16

The Attorney General also identified collateral harm from excessive cash bail. 

Defendants held in pretrial detention risk losing jobs, housing, and even custody of their 

children.17 And he argued that the rise in pretrial detention is expensive: pretrial detention 

costs between $83 and $153 a day per defendant, and a grand total per day of $500,000 to 

$1,000,000 to Maryland taxpayers for the over 7,000 defendants awaiting trial.18

The report by the Office of the Public Defender (“OPD”) raised similar concerns.

19

 

16 Id. at 4.

17 2001 Abell Report, supra n. 9; Cherise Fanno Burdeen, The Dangerous Domino Effect 

of Not Making Bail, THE ATLANTIC (April 12, 2016), 

https://www.theatlantic.com/politics/archive/2016/04/the-dangerous-domino-effect-ofnot-making-bail/477906/.

18 2014 Commission Report at 12, supra n .9.

19 See OPD Report, supra n. 6.
12

OPD analyzed 700,000 criminal cases filed in the District Court of Maryland between 2011 

to 2015 and found that during that timeframe, 17,434 defendants were detained on bail 

amounts of less than $5,000.20 Defendants who posted bail bonds were obligated to pay the 

bond premium regardless of the outcome in the case, and were comprised 

disproportionately of African-Americans and those living in Maryland’s poorest zip codes. 

Over that five-year period, the study concluded, African-American defendants were 

charged at least $181 million, while defendants of all other races combined were charged 

$75 million. The report also reiterated other research concluding that secured money bail 

was no more effective than unsecured bonds at ensuring appearances at trial.21

Opponents of the proposed rules changes at both meetings offered two primary 

reasons to reject them. First, opponents contended that reforms to pretrial release standards 

should come from the General Assembly. Second, opponents argued that the cost of 

implementing substantive changes would result in substantial costs to the State and 

counties, and that bail bond companies played important roles in ensuring the appearance 

of defendants for trial and in apprehending defendants who didn’t. They argued as well 

that financial conditions created opportunities for defendants to be released, and that 

eliminating or reducing opportunities for financial conditions would result in more 

defendants being held pending trial.22

 

20 Id. at 4. 

21 Id.

22 Bail Industry Report at 6, supra n. 7. 
13

The Subcommittee held an open meeting regarding proposed amendments to the 

cash bail system. The bail industry participated and responded to the proposed amendments 

at that open meeting. The Subcommittee voted to forward the proposed changes to Rule 4-

216 to the entire Rules Committee. 

The Rules Committee held another open meeting at which the full range of 

stakeholders appeared and participated. The Rules Committee considered all of the 

materials and comments and voted to recommend the revisions to the Court of Appeals. In 

its 192nd Report to the Court, the Committee stated that pretrial release standards have 

historically fallen within the authority of the Judicial Branch. The Committee saw no 

evidence that “if more defendants were released, there would be more failures to appear.”

And saving the resources that would otherwise be expended on pretrial incarceration would 

“result in [] substantial savings to the State and the counties that operate and fund the 

detention centers.” The Report outlined the proposed amendments to Rule 4-216 and 

others, and recommended that the Court adopt a new Rule 4-216.1 that clarified further the 

standards for pretrial release. The proposed changes were constructed from language 

contained in former Rule 4-216, but were reorganized to follow more closely the Pretrial 

Release Standards adopted by the American Bar Association. 

After receiving the Report, the Court of Appeals held two open hearings and, with 

a few changes, accepted the Rules Committee’s recommendation. The Court adopted the 

proposed changes to the Rules on February 17, 2017, to take effect on July 1, 2017. The 

new Rule 4-216.1 begins by articulating the general principle that defendants should be 

released—with conditions when necessary, and preferably non-financial conditions—
14

unless the judicial officer finds a reasonable likelihood the defendant won’t appear or will 

be a danger to the community. In addition, the Rule requires judicial officers to consider 

the individual circumstances of each defendant23 and to impose the least onerous conditions 

necessary: 

 

23 Subsection (f) lists the factors the judicial officer must consider in deciding whether to 

release the defendant and on what terms:

(f) Consideration of Factors.

(1) Recommendation of Pretrial Release Services Program. In 

determining whether a defendant should be released and the 

conditions of release, the judicial officer shall give 

consideration to the recommendation of any pretrial release 

services program that has made a risk assessment of the 

defendant in accordance with a validated risk assessment tool 

and is willing to provide an acceptable level of supervision 

over the defendant during the period of release if so directed 

by the judicial officer.

(2) Other Factors. In addition to any recommendation made in 

accordance with subsection (f)(1) of this Rule, the judicial 

officer shall consider the following factors:

(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 request made under Code, Criminal Procedure 

Article, § 5-201 (a) for reasonable protections for the safety 

of an alleged victim;

(E) any recommendation of an agency that conducts pretrial 

release investigations;
15

(b) General Principles.

(1) Construction.

(A) This Rule is designed to promote the release of 

defendants on their own recognizance or, when necessary, 

unsecured bond. Additional conditions should be imposed 

on release only if the need to ensure appearance at court 

proceedings, to protect the community, victims, witnesses, 

or any other person and to maintain the integrity of the 

judicial process is demonstrated by the circumstances of the 

individual case. Preference should be given to additional 

conditions without financial terms.

(B) This Rule shall be construed to permit the release of a 

defendant pending trial except upon a finding by the 

judicial officer that, if the defendant is released, there is a 

reasonable likelihood that the defendant (i) will not appear 

when required, or (ii) will be a danger to an alleged victim, 

another person, or the community. If such a finding is 

made, the defendant shall not be released.

Cross reference: Code, Criminal Procedure Article, § 5-101. 

For the inapplicability of the Rules in Title 5 to pretrial release 

proceedings, see Rule 5-101 (b).

(2) Individualized Consideration. A decision by a judicial 

officer whether or on what conditions to release a defendant 

shall be based on a consideration of specific facts and 

 

(F) any information presented by the State’s Attorney and 

any recommendation of the State’s Attorney;

(G) any information presented by the defendant or 

defendant’s attorney;

(H) the danger of the defendant to an alleged victim, 

another person, or the community;

(I) the danger of the defendant to himself or herself; and

(J) any other factor bearing on the risk of a willful failure 

to appear and the safety of each 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.
16

circumstances applicable to the particular defendant, including 

the ability of the defendant to meet a special condition of 

release with financial terms or comply with a special condition 

and the facts and circumstances constituting probable cause for 

the charges.

(3) Least Onerous Conditions. If a judicial officer determines 

that a defendant should be released other than on personal 

recognizance or unsecured bond without special conditions, 

the judicial officer shall impose on the defendant the least 

onerous condition or combination of conditions of release set 

forth in section (d) of this Rule that will reasonably ensure (A) 

the appearance of the defendant, and (B) the safety of each 

alleged victim, other persons, and the community and may 

impose a financial condition only in accordance with section 

(e) of this Rule.

(4) Exceptions. Nothing in this Rule is intended to preclude a 

defendant from being held in custody based on an alleged 

violation of (A) a condition of pretrial release, a release under 

Rule 4-349, or an order of probation or parole previously 

imposed in another case, or (B) a condition of pretrial release 

previously imposed in the instant case.

(c) Release on Personal Recognizance or Unsecured Bond.

(1) Generally. Except as otherwise limited by Code, Criminal 

Procedure Article, § 5-101 or § 5-202, unless the judicial 

officer finds that no permissible non-financial condition 

attached to a release will reasonably ensure (A) the appearance 

of the defendant, and (B) the safety of each alleged victim, 

other persons, or the community, the judicial officer shall 

release a defendant on personal recognizance or unsecured 

bond, with or without special conditions. If the judicial officer 

makes such a finding, the judicial officer shall state the basis 

for it on the record.

Cross reference: Code, Criminal Procedure Article, § 5-101 (c) 

precludes release on personal recognizance if the defendant is 

charged with certain crimes. Section 5-202 of that Article 

precludes release by a District Court commissioner if the 

defendant is charged with certain crimes under certain 

circumstances.

(2) Permissible Conditions. Permissible conditions for 

purposes of this section include the required conditions set 
17

forth in subsection (d)(1) and the special conditions set forth or 

authorized in subsection (d)(2) of this Rule.

Subsection (d) of the new Rule lists the permissible conditions of release, and 

financial conditions come last (before only the catch-all provision):

(d) Special Conditions of Release.

(1) Required Conditions. There shall be included, as conditions 

of any release of the defendant, that (A) the defendant will not 

engage in any criminal conduct during the period of pretrial 

release, and (B) the defendant will appear in court when 

required to do so.

(2) Special Conditions. Subject to section (b) of this Rule, 

special conditions of release imposed by a judicial officer 

under this Rule may include, to the extent appropriate and 

capable of implementation:

(A) 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, including a general no-contact order;

(B) reasonable restrictions with respect to travel, 

association, and place of residence;

(C) a requirement that the defendant maintain employment 

or, if unemployed, actively seek employment;

(D) a requirement that the defendant maintain or commence 

an educational program;

(E) a reasonable curfew, taking into account the 

defendant’s employment, educational, or other lawful 

commitments;

(F) a requirement that the defendant refrain from 

possessing a firearm, destructive device, or other dangerous 

weapon;

(G) a requirement that the defendant refrain from excessive 

use of alcohol or use or possession of a narcotic drug or 

other controlled dangerous substance, as defined in Code, 

Criminal Law Article, § 5-101 (f), without a prescription 

from a licensed medical practitioner;
18

(H) a requirement that the defendant undergo available 

medical, psychological, or psychiatric treatment or 

counseling for drug or alcohol dependency;

(I) electronic monitoring;

(J) periodic reporting to designated supervisory persons;

(K) committing the defendant to the custody or supervision 

of a designated person or organization that agrees to 

supervise the defendant and assist in ensuring the 

defendant’s appearance in court;

(L) execution of unsecured bonds by the defendant and an 

uncompensated surety who (i) has a verifiable and lawful 

personal relationship with the defendant, (ii) is acceptable 

to the judicial officer, and (iii) is willing to execute such a 

bond in an amount specified by the judicial officer;

(M) execution of a bond in an amount specified by the 

judicial officer secured by the deposit of collateral security 

equal in value to not more than 10% of the penalty amount 

of the bond or by the obligation of a surety, including a 

surety insurer, acceptable to the judicial officer;

(N) execution of a bond secured by the deposit of collateral 

security of a value in excess of 10% of the penalty amount 

of the bond or by the obligation of a surety, including a 

surety insurer, acceptable to the judicial officer; and

(O) any other lawful condition that will help ensure the 

appearance of the defendant or the safety of each alleged 

victim, other persons, or the community.

But perhaps the most significant change comes in subsection (e), which specifically 

forbids judicial officers from imposing financial conditions of release that a defendant 

cannot meet:

(e) Release on Special Conditions.

(1) Generally.

(A) A judicial officer may not impose a special condition 

of release with financial terms in form or amount that 

results in the pretrial detention of the defendant solely 

because the defendant is financially incapable of meeting 
19

that condition. In making that determination, the judicial 

officer may consider all resources available to the 

defendant from any lawful source.

(B) Special conditions of release with financial terms are 

appropriate only to ensure the appearance of the defendant 

and may not be imposed solely to prevent future criminal 

conduct during the pretrial period or to protect the safety of 

any person or the community; nor may they be imposed to 

punish the defendant or to placate public opinion.

(C) Special conditions of release with financial terms may 

not be set by reference to a predetermined schedule of 

amounts fixed according to the nature of the charge.

(2) Other Permissible Conditions. If the judicial officer finds 

that one or more special conditions also may be required to 

reasonably ensure (A) the appearance of the defendant, and (B) 

the safety of each alleged victim, other persons, or the 

community, the judicial officer may impose on the defendant 

one or more special conditions in accordance with section (d) 

of this Rule.

As a result, the Rule leaves cash bail only as a last resort, and only when it’s the least 

onerous condition that will secure the defendant’s appearance or protect the public. And if 

the judicial officer has made that predicate finding, he must then conduct an individualized 

inquiry into the defendant’s ability to pay and make such a finding on the record before 

setting the bond.

B. Messrs. Bradds and Hill.

1. Mr. Bradds

On January 17, 2018, Mr. Bradds was charged with first-degree burglary, thirddegree burglary, fourth-degree burglary, malicious destruction of property, and theft 

between $100 and $1500. The charges arose from allegations that on January 13, 2018, he

broke into the home of his brother’s fiancée and stole a flat screen television and a digital 
20

camera and damaged the front door to the home. Mr. Bradds was arrested on January 19, 

2018, pursuant to a warrant. 

When Mr. Bradds appeared before a district court commissioner, his bail was set at 

$25,000. He was unable to pay this amount and remained in jail awaiting a bail review 

hearing. The OPD represented Mr. Bradds at his bail review hearing. His counsel asked 

the court to convert Mr. Bradds’s $25,000 secured bond to an unsecured bond. Counsel 

argued that Mr. Bradds did not have a steady job and had recently enrolled in a methadone 

treatment program. The court also reviewed Mr. Bradds’s criminal history, which included 

six convictions for non-violent crimes, one probation before judgment, and eleven failures 

to appear. The State made no recommendation regarding bail or pretrial release. The court 

asked no additional questions about Mr. Bradds’s ability to post bail, and the State offered 

no evidence suggesting that he could. The court noted that it had been leaning toward 

holding Mr. Bradds without bail, but instead increased the amount of his secured bond to 

$50,000:

THE COURT: All right. Let’s turn [to] Bradds. All right. Mr. 

Bradds, this is State of Maryland v. Aaron Bradds. This is Case 

No. 1B02133328 charging you with first-degree burglary, 

maximum penalty 20 years; third degree burglary, maximum 

penalty 10 years; fourth-degree burglary dwelling, 3-year 

maximum; fourth-degree burglary theft, 3-year maximum; 

theft $100 to under $1,500, 6 months and/or $500 fine; 

malicious destruction of property valued under $1,000, 60 days 

and/or a $500 fine.

Mr. Bradds, the Public Defender has made a 

preliminary hearing request for you. You also have a right to a 

jury trial. Your next court date is February 15th at the Patapsco 

Avenue District Courthouse. Mr. Bradds, do you understand 

the charges and the rights I explained to you earlier?
21

MR. BRADDS: Yes, Your Honor.

THE COURT: Okay. Pretrial?

PRETRIAL INVESTIGATOR: Your Honor, Defendant 

refused Pretrial’s interview. He has six convictions on record. 

Most recent, January of 2016 theft; March 2016 conspiracy 

burglary in the first; August 2012, unauthorized removal of 

property; March 2012, a theft; July 2012, felony CDS; and 

June 2004, misdemeanor CDS. He has one PBJ from June 2011 

for CDS paraphernalia. He has seven FTA’s on record, most 

recent May 2015. He has four additional in the year of 2011 

and May of 2012. Your Honor, Pretrial does not have a 

statement of probable cause at this stage –

THE COURT: This is the one where – well, I tell you what –

STATE’S ATTORNEY: I actually don’t have a copy of it 

either, Your Honor. 

THE COURT: Well, I’m going to enlighten both of you then. 

So on Saturday, January 13th, at around 11:30 in the evening, 

police respond to 346 South Payson Street, Apartment B for a 

call of burglary. They’re met by a Ms. Shore. She advises that 

earlier that day at about 1:30 in the afternoon, she left for 

work[,] dwelling locked and secured, all property there. She 

gets home at 11:15 p.m., the front door is forced open. Her flat 

screen TV, her digital camera are missing. Approximate value 

$500. Door is damaged as well.

Investigation reveals that on the day of the incident, a 

female relative of the victim observed – and here’s where it 

gets a little – observed the victim’s fiancé’s brother. So in other 

words, the victim, Ms. Shore, has a fiancé if I’m reading this 

correctly, and that Mr. Bradds is the brother of the fiancé. He 

is seen walking in the vicinity of the house. In addition, another 

neighbor reports seeing someone actually breaking into the 

dwelling shortly before 4:30 on the – 4 o’clock on the day of 

the incident. The neighbor confronted the suspect in the act. 

The suspect replied, “It’s my brother’s house,” and continued 

to force his way inside. A detective administers a double-blind 

photo array to this neighbor who saw the break-in. This on the 

Wednesday the 17th, four days later. Mr. Bradds, as the person 

he saw breaking into the house. The victim’s fiancé who, again,

I think Mr. Bradds is the brother of, never lived in the victim’s 

house and neither he nor the suspect had permission to be 
22

inside the house on the day in question. That is the Statement 

of Charges. 

PRETRIAL INVESTIGATOR: In light of those allegations, 

Your Honor, the Defendant broke into the dwelling. Pretrial is 

recommending that bail be revoked. The Defendant is a threat 

to public safety and a threat to the victim.

THE COURT: Okay. [Defense Counsel].

[DEFENSE COUNSEL]: Thank you, Your Honor. [Defense 

Counsel] on behalf of Mr. Bradds. Your Honor, I’d be asking 

the Court to convert this from the $25,000 secured bail to 

$25,000 unsecured in light of the fact that Mr. Bradds does not 

have a steady job. Your Honor, he is 27-years-old. He does live 

at 1611 McHenry Street. He’s lived there his entire his life, 

lives there with his grandparents and also one of his uncles. 

Your Honor, Mr. Bradds freely admits he has had an issue with 

substance abuse. His conviction history basically substantiates 

that. Both CDS and sort of –

THE COURT: Well, that’s –

[DEFENSE COUNSEL]: – offenses that are related to his past.

THE COURT: – I agree. I agree with that [Defense Counsel]

and one of those offenses, though, is a first-degree burglary 

from not long ago in 2016.

[DEFENSE COUNSEL]: I do understand that, Your Honor. 

He’s served his sentence on that and it’s completed.

THE COURT: Well, no, no. My point is, individuals 

oftentimes, to feed their addiction, will engage in behavior that 

can be – you know, first-degree burglary poses so many 

dangers. It poses a danger to the person committing the act. 

They could be confronted by someone inside. It poses a danger, 

probably the bigger danger potentially, is if someone’s home, 

that person can be – fall prey to some physical harm as well. 

It’s, you know –

[DEFENSE COUNSEL]: I certainly understand what the Court 

is saying. What I wanted to explain to the Court is that Mr. 

Bradds just started going to a methadone program. So he is 

trying to address his substance abuse issue. He just started that 

last week on the 16th, which I think would’ve been Wednesday 

of last week. He actually went to University of Maryland –

because he’s –
23

THE COURT: No, it would’ve been last Tuesday.

[DEFENSE COUNSEL]: Tuesday, my apologies, he is 

suffering from pneumonia, so he went to the University of 

Maryland. As long as he was there, he decided you know what, 

this is time for me to finally address this and he started going 

to the methadone program there.

And he certainly denies the allegations in this case. I 

would note that he has some failures to appear. They haven’t 

happened recently. He does have a pending matter in which I 

represent him that is scheduled for this Friday. He has always 

appeared in court for that matter. I think [he’s] been in court at 

this point three times. He has always been in court on time. So 

we’d be asking the Court to consider an unsecured bail in this 

case in the amount of $25,000 and, obviously, require that he 

complete or continue with the drug treatment that he just 

began, Your Honor.

THE COURT: All right. I don’t think I’m prepared to adopt 

either recommendation. I was leaning towards the no bail for a 

combination of factors; the criminal record, the facts of this 

case, the multiple FTA’s. Certainly, unsecured in my mind is 

not appropriate. I am going to revise bail to $50,000 at 10 

percent. If Mr. Bradds posts bond, he’ll be on Pretrial 

supervision, drug screening, no contact with victim, stay away 

from 349 – or, no, 346 South Payson Street. 

The last sentence bears emphasizing: “[i]f Mr. Bradds posts bond,” he would be required 

to obey several release conditions. (Emphasis added.) 

Mr. Bradds was unable to obtain a bond and remained incarcerated in the Baltimore 

City Jail until at least the time of oral argument before this Court. In February, Mr. Bradds 

had been charged by indictment for his crimes in the Circuit Court for Baltimore City, and 

the underlying district court case was closed. 

In March, Mr. Bradds filed a petition for writ of habeas corpus in the circuit court.

In his supporting affidavit, he stated that he was twenty-seven years old, that he helps to 

support his seven- and eleven-year-old children, as well as his grandparents, but had been 
24

unemployed for months, did not receive public benefits, did not have any assets, and could 

not afford bail. The State did not respond to his petition. The circuit court denied the 

petition, without a hearing, in an order filed on March 15, 2018. Mr. Bradds filed an 

application for leave to appeal the circuit court’s denial of his petition for writ of habeus 

corpus, which we granted on April 27, 2018. His case was scheduled for trial in the circuit 

court on July 9, 2018. 

2. Mr. Hill

On January 11, 2018, Mr. Hill was charged with two counts of first-degree burglary, 

two counts of third-degree burglary, four counts of fourth-degree burglary, conspiracy to 

commit burglary, theft between $100 and $1500, malicious destruction of property, and 

reckless endangerment. He was alleged to have broken into three properties in Baltimore 

City owned by the same person and stolen electronics, a water heater, and a kitchen stove. 

The removal of the water heater in one property resulted in flooding that caused significant 

damage, and the disconnection of the stove caused a serious gas leak. He was arrested on 

January 27, 2018, pursuant to a warrant. 

Mr. Hill’s bail was set at $35,000 by a district court commissioner. He was unable 

to pay and remained in jail awaiting a bail review hearing. An attorney from the Office of 

the Public Defender represented Mr. Hill at the hearing. His attorney and the pretrial 

services agent both requested that Mr. Hill be released on his own recognizance with 

pretrial supervision. The State did not offer an alternate release plan. The court heard no

information about Mr. Hill’s employment, income, or assets. But the court did learn of Mr. 

Hill’s criminal history, which included multiple convictions for theft and drugs in 
25

Maryland, as well as convictions in West Virginia for domestic violence, breaking and 

entering, daytime housebreak, shoplifting, and burglary. 

At the close of the bail review hearing, the court declined the suggestion of pretrial 

services and defense counsel and raised Mr. Hill’s bail to $50,000, payable at 10 percent:

THE COURT: Now on the docket is Samuel Lloyd Hill, Jr., 

Case No. 5B02365242. Thank you, Mr. Hill. Mr. Hill, you are 

charged in this matter with burglary in the first-degree. Carries 

a maximum penalty of 20 years. You’re also charged with 

another count of burglary first-degree carry the same max 

penalty, two counts of burglary in the third-degree carries a 

maximum penalty of 10 years each. Four counts of fourthdegree burglary, each which carry a maximum penalties of 3 

years. Two counts of malicious destruction under $1,000 

carries – each carry a maximum penalty of 60 days and/or $500 

fine. Two counts of theft and property value between $100 and 

$1,500 carries a maximum penalties of 6 months and/or $500 

fine each. One count of reckless endangerment carries a 

maximum penalty of 5 years and/or $5,000 fine. One count of 

conspiracy to commit – two counts of conspiracy to commit 

first-degree burglary, each of which carry a maximum penalty 

of 20 years incarceration. 

Pretrial?

PRETRIAL INVESTIGATOR: Your Honor, the Defendant’s 

information was not verified. The Defendant refused to be 

interviewed. Your Honor, the Defendant has a total of nine 

convictions on record. Most recent January of 2013 for one 

count of burglary. One count for a felony CDS. And I’m sorry, 

Your Honor, that burglary has an active parole set to expire 

July 2025. The Defendant has one for felony CDS. Four for 

misdemeanor theft. Three for misdemeanor CDS. Five FTA’s 

on record, Your Honor. Most recent, February of 2009 through 

December of 2006. The Defendant is pending a matter out of 

Wabash dated February 7th, 2018, 8:30 a.m., Room 3. This 

involves MTA fine in the amount of $50. A citation was issued

January 9, 2018 for soliciting purchase of goods from transit. 

Your Honor, the Defendant has out-of-state ties to West 

Virginia with seven convictions on record. Most recent, 

December of 2013 for domestic violence. One for breaking and 
26

entering. One for destruction of property. One for daytime 

house break. One for shoplifting. One for burglary, daytime. 

One for destruction of property. Your Honor, Commissioner 

has set bail at 35,000. In light of the allegation of burglarized 

private property, taking into account most recent burglary 

conviction in the state of Maryland was during the year of 

2013. Most recent out of state conviction for breaking and 

entering and burglary was during the year of 2013. The 

Defendant’s most recent FTA was during the year of 2009.

Your Honor, to ensure the Defendant’s appearance in 

court, Pretrial is requesting that the Defendant be released on 

his own recognizance with Pretrial supervision. He did not 

return to said location.

THE COURT: State?

STATE’S ATTORNEY: State submits, Your Honor.

[DEFENSE COUNSEL]: Your Honor, I’ll certainly join, brief. 

Again, [Defense Counsel] on behalf of Mr. Hill. Ask this 

matter is set for preliminary hearing. I’ll certainly join and 

repress [sic] as being made by Pretrial. 

THE COURT: I’m sorry. Pretrial, can we go over his record 

once again, please?

PRETRIAL INVESTIGATOR: Yes, Your Honor. In the state 

of Maryland, the Defendant has nine convictions on record. 

Most recent, January of 2013 for one count of burglary with an 

active parole set to expire July 2025. The Defendant has four –

sorry, four convictions for misdemeanor theft. Once for CDS 

distribution, felony CDS, and three for misdemeanor CD[S]. 

The Defendant has out-of-state ties to West Virginia with 

seven convictions on record. Most recent, December of 2013 

for domestic violence. One for breaking and entering. One for 

destruction of property. One for daytime housebreak. One for 

shoplifting.

THE COURT: Thank you very much.

PRETRIAL INVESTIGATOR: One for burglary, yes.

THE COURT: Does your client want anything?

[DEFENSE COUNSEL]: No, no he does not, Your Honor.

MR. HILL: (Indiscernible -20:14:04.)
27

[DEFENSE COUNSEL]: Mr. Hill, I don’t think that’s a good 

idea.

THE COURT: I’m sorry, he says he wants to add something?

[DEFENSE COUNSEL]: Your [sic] certainly, if you’d like to 

say something, you certainly can.

[MR. HILL]: (Indiscernible – 20:14:11.)

[DEFENSE COUNSEL]: I’ve advocated on your behalf. And 

these proceedings are being recorded. Please don’t discuss the 

facts of the case. And I would just allow you to request the 

Judge to make his decision based on all the things that he’s 

heard up to this point.

[MR. HILL]: I understand. I just want to say that the conviction 

of burglary, the only recent burglary that I had was in West 

Virginia. I’ve never had a conviction of burglary in Maryland. 

I do not know what that’s about. And the domestic violence 

case, I don’t know what that’s about. And the domestic 

violence case, I don’t know what that’s about either. My father 

– me and my father had (indiscernible 20:14:48).

THE COURT: All right.

[MR. HILL]: So that’s –

THE COURT: Thank you. Mr. Hill, I’m actually more 

concerned about your very lengthy history of thefts in these 

matters regarding your history of theft in these cases. They 

seem to be so frequent that it alarms me. 

[MR. HILL]: I really didn’t get into trouble in years. 

THE COURT: When’s the last time he’s – Pretrial, when was 

the last conviction?

PRETRIAL INVESTIGATOR: 2013, Your Honor.

THE COURT: Years? I guess that is years.

PRETRIAL INVESTIGATOR: And Pretrial notes –

THE COURT: Bail in this matter is set at $50,000 at 10 

percent.

Mr. Hill could not afford the increased (or original) bail and remained incarcerated 

in the Baltimore City Jail through oral argument in this Court. 
28

In March, Mr. Hill filed a petition for a writ of habeas corpus in the Circuit Court 

for Baltimore City. In his supporting affidavit, he stated that he is twenty-nine years old, 

unemployed, has no savings or assets, has more than $10,000 in personal debt, provides 

for his two-year-old son, is the sole caretaker of his mother who suffers from congestive 

heart failure, and cannot afford bail. The State did not respond. The circuit court denied the

petition without a hearing on March 15, 2018 and Mr. Hill filed an application for leave to

appeal on March 23, 2018. We granted the application. Mr. Hill’s trial was set in the Circuit 

Court for Baltimore City on June 27, 2018. 

II. DISCUSSION

After oral argument in this Court, we issued an Order reversing the circuit court’s 

decisions to deny habeas corpus relief to Messrs. Bradds and Hill, and remanding the cases 

to the circuit court with directions to grant the petitions and order a new bail review. We 

now explain our reasoning.

A. The Court Did Not Apply The Revised Maryland Rules Correctly.

The revisions to Rule 4-216.1 arose from concerns, and evidence, that low-income 

defendants were being incarcerated pending trial merely because they could not afford 

financial conditions for release. Although the new Rule did not eliminate cash or bond bail 

as some had advocated, the revised Rule 4-216.1 specifically prioritizes release over 

detention, release on own recognizance over release with conditions, and non-financial

conditions over financial conditions. Even more to the point, the Rule requires judicial 

officers to consider each defendant’s individual circumstances when setting conditions for 

release, and specifically to consider “the ability of the defendant to meet a special condition 
29

of release with financial terms.” Id., (b)(2). Financial conditions remain available, but any 

financial condition set cannot cause what amounts to pretrial detention simply because the 

defendant cannot afford to pay the bail amount set by the court:

(e) Release on Special Conditions.

(1) Generally.

(A) A judicial officer may not impose a special condition of 

release with financial terms in form or amount that results in 

the pretrial detention of the defendant solely because the 

defendant is financially incapable of meeting that condition.

In making that determination, the judicial officer may consider 

all resources available to the defendant from any lawful source.

(B) Special conditions of release with financial terms are 

appropriate only to ensure the appearance of the defendant 

and may not be imposed solely to prevent future criminal 

conduct during the pretrial period or to protect the safety of 

any person or the community; nor may they be imposed to 

punish the defendant or to placate public opinion.

(C) Special conditions of release with financial terms may not 

be set by reference to a predetermined schedule of amounts 

fixed according to the nature of the charge.

Md. Rule 4-216.1(e)(1–3) (emphasis added).

Of course, the record before the bail review court could have supported a range of 

outcomes. Both men could readily have been detained pending trial: Mr. Hill had five 

failures to appear, Mr. Bradds had eleven, and both faced serious charges that might have 

supported a finding that either or both were too dangerous to the community to release. 

Both men were charged with burglary, which carries a risk of physical confrontation with 

the homeowner or others who may be present: 

The main risk of burglary arises not from the simple physical 

act of wrongfully entering onto another’s property, but rather 

from the possibility of a face-to-face confrontation between the 
30

burglar and a third party—whether an occupant, a police 

officer, or a bystander—who comes to investigate. That is, the 

risk arises not from the completion of the burglary, but from 

the possibility that an innocent person might appear while the 

crime is in progress.

James v. United States, 550 U.S. 192, 203 (2007), overruled on other grounds by Johnson 

v. United States, 135 S. Ct. 2551 (2015); see also Sykes v. United States, 564 U.S. 1, 9 

(2011) (“Burglary is dangerous because it can end in confrontation leading to violence.”), 

overruled on other grounds by Johnson v. United States, 135 S. Ct. 2551 (2015). Even 

fourth-degree burglary risks physical confrontation and violence. United States v. Martin, 

753 F.3d 485, 491–92 (4th Cir. 2014) (“[T]he potential risk of physical injury arising from 

the commission of fourth-degree burglary under Md. Code Ann., Crim. Law § 6–205(a) is 

comparable to that arising from the commission of generic burglary. Critical to this 

conclusion is the fact that § 6–205(a) requires entry into a dwelling . . . dwellings—unlike 

‘storehouses’—are ‘likely to be occupied.’ . . . the crime of breaking and entering the 

dwelling house of another creates ‘a substantial risk of confrontation.’ This risk of 

confrontation is precisely the same risk that makes generic burglary a dangerous crime.”) 

(cleaned up). In fact, according to Mr. Bradds, the district court originally seemed inclined 

to hold Mr. Bradds without bail due to “a combination of factors; the criminal record, the 

facts of this case, the multiple FTA’s.” And had the court found that there was a reasonable 

likelihood that either defendant would not appear or would be a danger to an alleged victim, 

another person, or the community, the court would have been precluded from releasing 

him. Rule 4-216.1(b)(1)(B) 

The problem arises in Mr. Bradds’s case because the court leapt immediately from 
31

a discussion of possibly detaining him to a decision to increase his bail, without any 

consideration of whether he should be held or of less onerous conditions or of his ability 

to pay. The Rules would readily have permitted the court to find that he was too dangerous 

to release or that his repeated failures to appear created a flight risk, and the record would 

have justified such a finding. Failing that, though, and assuming that the court is 

unpersuaded by the evidence and argument offered at the hearing that the public safety 

isn’t compromised by releasing Mr. Bradds on his own recognizance, the Rules required 

the court to discern, based on his individual circumstances, and impose the least onerous 

conditions necessary to ensure his appearance and protect the public. The court made 

reference to alternative conditions—“Pretrial supervision, drug screening, no contact with 

victim, stay away from 349 – or, no, 346 South Payson Street”—but only as conditions that 

would kick in “if” Mr. Bradds posted bail. This placed the cart before the horse: before 

considering financial conditions, the court had to find they were the only conditions that 

could ensure Mr. Bradds’s appearance for trial, and then Rules 4-216 and 4-216.1(c)(1) 

required the court to determine his ability to pay and set bail at a level he could achieve.

The court in Mr. Hill’s case did not have as detailed a record, but did note that it

was “more concerned about [Mr. Hill’s] very lengthy history of thefts in these matters,”

and that the thefts “seem to be so frequent that it alarms me.” Soon after that comment, and 

after ascertaining that his last conviction was years prior in 2013, the court raised his bail 

to $50,000 at 10 percent. Like Mr. Bradds, the record would have supported a decision to 

hold Mr. Hill without bail and reject the release recommendation of pretrial services. But 

once the court chose instead to release him on conditions, the Rules required it to consider 
32

non-financial conditions first and then, only after finding a financial condition necessary, 

required it to consider “the ability of the defendant to meet a special condition of release 

with financial terms” and “impose on the defendant the least onerous condition or 

combination of conditions of release . . . that [would] reasonably ensure [] the appearance 

of the defendant, and [the safety of the community].” Md. Rule 4-216.1(b)(2–3). And when 

determining the appropriate amount of bail, the Rule required the court to consider the 

“resources available to the defendant from any lawful source” and prohibited it from 

imposing “a special condition of release with financial terms in form or amount that results 

in the pretrial detention of the defendant solely because the defendant is financially 

incapable of meeting that condition.” Md. Rule 4-216.1(e)(1)(A).

In both of these cases, intentionally or not, the records suggest that the court fell 

back on the approach common under the old Rules, not the Rules as revised. Both courts

had a record on which they could have determined whether these defendants should have 

been held as dangerous or as flight risks. Once the courts decided not to hold these 

defendants, they should have considered non-financial conditions before considering 

financial conditions. And once the courts considered and rejected non-financial conditions, 

the court should have assessed the defendants’ financial status and set financial conditions 

that they had an opportunity to meet. Because the courts set bail without considering 

alternative non-financial conditions or assessing the defendants’ abilities to satisfy 

financial conditions, we reversed the circuit court’s decision to deny their petitions for writs 

of habeas corpus and ordered bail hearings consistent with the revised Rules.
33

If, as it appears, the courts did not intend for these defendants to be released pending 

trial, the courts should not have accomplished that goal by setting bond at a level these 

indigent defendants could not meet. Financial conditions should be imposed only as a last 

resort, and only as conditions of release, i.e., at a level that the individual defendant has a 

reasonable prospect of satisfying. Even when financial conditions are used appropriately—

circumstances that should be a rare exception under the new Rules, not the norm—those 

conditions must reflect the defendant’s individual financial circumstances and must be set 

at a level that will permit him an opportunity to achieve his release. Financial conditions 

designed to thwart or eliminate the possibility of release violate the letter of the applicable

Rules and the principles underlying them.

We do not mean remotely to suggest that the Rules entitled these defendants to be 

released. Again, the record before bail review courts contains undisputed information that 

could have supported findings to hold both of them had the court undertaken the correct 

analysis. But because the courts decided not to do so, then skipped over any consideration 

of non-financial conditions, its decisions to impose these financial conditions on these 

indigent defendants were inconsistent with the revised Rules.