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, subj e ct to appropriate conditions. The court should impose the least onerous possible conditions of release, beginning with non

- financial conditions. Financial conditio ns are available a last resort, but may not be imposed unless the court undertakes an individ ualized 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 No s
. 24H18000063 and 24H18000072 REPORTED
IN THE COURT OF SPECIAL APPEALS

OF MARYLAND
No s
. 77 & 78 September Term, 201 8

____ ____ _____ _________________________ AARON BRADDS AND SAM UEL HILL

v. DIONNE RANDOLPH, WARDEN

_________ _____ ________________________ Nazarian, Leahy, Krauser, Peter B. (Senior Judge, Specially Assign ed),

JJ.

_______ ______ _________________________

Opinion by Nazarian, J.

___________ __ _________________________ Filed: September 28, 2018I’ve got clean away but I ’ ll be back some day , j ust the combination will have changed Someday they ’ ll catch me, to a chain they ’ ll attach me , b ut ‘ til that day I ’ ll r ide 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 dange r 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 primaril y 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 deprivation s 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 revision s to the Maryland R ules 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 G ENESIS , Robbery, Assault, and Battery , A T RICK OF THE T AIL (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 resor t . E ven 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 ap pellants 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 w e 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 direc ted 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 provided3

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 officer s 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 t o 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 Cod e, Criminal Procedure Article, §§ 5

- 201 and 5

- 202, a defendant is entitled to be released be fore verdict on personal recognizance or on bai l, in either case with or without conditions imposed, unless the judicial officer determines that no condition of rel ease 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 defendan t 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 circumstan ces 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, fin ancial 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 St ate’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 bea ring on the risk of a willful failure to appear and the safety of the alleged victim, another person, or the community, including all p rior convictions and any prior adjudic ations 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 r elease 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 co nditions 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) requi ring the defendant to post a bai l 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 valu e to the greater of $100.00 o r 10% of the full penalty amount, and if the judicial officer sets bail at $2500 or less, the judicial officer shall advise the defendant t hat the defendant may post a bai l bond secured by either a corporate surety or a cash deposit of 10% of the full pena lty 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 defe ndant 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 aut horized under C ode, Criminal Article , § 9

- 304 reasonably necessary to stop or prevent the6 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 , on
the

- fly , multi

- factor ial, discretionary decision s w ould 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 men 2

— were being held before trial for no reason other than being unable to
afford bail , 3 and even though their charges, if p roven, often would result solely in fines or less than a year i n 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 , P RETRIAL J USTICE I NSTITUTE , 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 , N ATIONAL C ENTER FOR S TATE C OURTS (2016), http://www.courtstatistics.org/~/media/Microsites/Files/CSP/Criminal/PDFs/EWSC

2016

- CRIM

- Page

- 2

- Comp.ashx

.7

the defendant, ” particularly if “pretrial detention is not j ustified 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 wa s 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 financia l condition of pretrial release. ” Following this
Letter , t he Attorney General formally requested the Court of Appeals’s Standing
Committee on Rules of Practice a nd Procedure ( the “Rules Committee”) to investigate the concerns it expressed in its letter and consider amendments to the Maryland R ule s
. The Rules Committee then took up the issue. After a process we will detail next, the
Committee voted in f

avor of recommending the proposed revisions to the Court of Appeals
and submitted the m 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
rega rding the manner in which certain core principles intended to govern decisions regarding the pretrial release of arrested individuals” and help prevent defe ndants from
be ing “incarcerated, prior to trial, for no reason other than poverty.”

2. After: Cash Bail Reform and the N ew Rules . After receiving the Letter, t he Rules Committee assign ed the proposed revisions to the Criminal Rules Subcommittee (the “Subcommittee”). The Subcommittee reviewed8

materials submitted by the Attorney General , 5 the Office of th e Public Defender, 6 the bail industry, 7 and other stakeholders, 8 then 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 o f Bail: How Maryland’s Reliance On Money Bail Jails The Poor And Costs The Community Millions , M ARYLAND O FFICE OF THE P UBLIC D EFENDER (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 , K IRKLAND & E LLIS 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, Cha ir, 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 M aryland 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 L aw 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 Pract ice 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); Let ter 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, Anth ony 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, C aroline, Carroll, Charles, Dorchester, Frederick, Garrett, Harford, Howard, Kent, Queen Anne’s, Somerset, Talbot, Washington, Wicomico, Worcester9

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 pe ople detained prior to trial had been increasing, an d 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) (o n 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 Mc Donough, 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 Relea se Pro ject: A Study of Maryland’ s Pretrial Release and Bail System , T HE A BELL R EPORT ( 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 , D EPARTMENT OF L EGISLATIVE S ERVICES , O FFICE OF P OLICY A NALYSIS (December 13, 2013), h ttps://msa.maryland.gov/msa/mdmanual/26excom/defunct/html/31represent.html ; James Austin and Johnette Peyton, Maryland Pretrial Risk Assessment Data Collection Study , JFA I NSTITUTE 36

– 59 (2013) , http://goccp.maryland.gov/pretrial/documents/2014

- pretrial

- c ommission

- final

- report.pdf ; Commission to Reform Maryland’ s Pretrial System, Final Report , G OVERNOR ’ S O FFICE OF C RIME C ONTROL AND P REVENTION (2014),10

relationship between a pretrial detainee’s perc eived 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 high er
- risk defendants

. 11
S tudies in other jurisdictions with wealth

- based pretrial systems found that nearly half of the most dangerous defendants we re able to post bail and reenter the community without monitoring or supervision by courts. 12 Conversely, t he Attorney General pointed to other jurisdictions such as the District of Columbia, 13 Kentucky, 14 and Colorado, 15 that focus ed 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 arrest s for new criminal activity while on pretrial release decreased. He argued that cash bail system s disproport ionately

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 , T HE A BELL R EPORT , V ol.29, No.2 (June 2016), https://abell.org/sites/default/files/files/cja

- pretrial616(1).pdf (hereinaf ter “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

- research

summary_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 , W ASHINGTON P OST (J uly 4, 2016) , https://www.washingtonpost.com/local/public

- safety/when

- it

- comes
- to

- pretrial

- release

few

- other

-

jurisdictions

- do

- it

- dcs

- way/2016/07/04/8eb52134

- e7d3

- 11e5

- b0fd

073d5930a7b7_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

t he 2016 Abell Report revealed that pattern in Ma ryland : corrections records from Baltimore City, Prince George’s County , and Baltimore County reveal ed that African

American 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 contributi ng 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 compri se about 60 percent of the city’ s re sidents, but 90 percent of Baltimore jail inmates. 16
T he 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 : p retrial 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 th e Office of the Public Defender (“OPD”) raised similar concerns

. 19

16 Id. a t 4.
17 2001 Abell Report , supra n. 9 ; Cherise Fanno Burdeen, The Dangerous Domino Effect of Not Mak ing Bail , T HE A TLANTIC (April 12, 2016), https://www.theatlantic.com/politics/archive/2016/04/the

- dangerous

- domino

- effect

- of

not

- 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 t hat timeframe , 17,434 defendants were detained on bail
amounts of less than $5,000. 20 D efendants 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 code s
. Over that five

- year p eriod, 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 effe ctive than unsecured bonds at ensuring appearances at trial. 21 Opponents of the proposed rules changes at both meetings off ered two primary reasons to reject them

. First , opponents contended that reform s 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 role s 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 con sidered all of th e materials and comments and voted to recommend the revisions to the Court of Appeals

. In
its 192 n d Report to the Court, the Committee stated that pretrial release standards have historically fallen within the authority of the Judicial Branch. T he Committe e saw no evidence that “if more defendants were released, there would be more failures to appear. ” And saving t he resources that would otherwise be expended on pretrial incarceration would “result in [] substantial savings to the State and the counties tha t operate and fund the
detention centers.” The Report outlin ed the proposed amendments to Rule 4

- 216 and others, and r ecommended that the Court adopt a new Rule 4

- 216.1 that clarified further the standards for pretrial release. The proposed changes were co nstructed 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, t he Court of Appeals held two open hearing s and , with a few changes, accepted the Rules Committee’s recommendation

. The Court adopt ed the proposed changes to the R ules 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 defendant 23 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 office r 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 m ade 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 proce ss 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 ju dicial 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 defend ant 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 w hether 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 h erself; 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 thr ee 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 t erms 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 u nsecured 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 def endant, 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 h eld 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 condi tion 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, wi th 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 th e 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 set17 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 c onditions 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 of ficer 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 witne ss 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 requi rement 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, educationa l, 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 narc otic 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 psychia tric 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 accep table 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 t o 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 meeting19 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 wi th 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 r easonably 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. A s 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 , third

degree burg lary , f

ourth

- degree burglary, malicious destruction of property, and theft between $100 and $1500. The charges arose from allegation s that on January 13, 2018, he
broke into the home of his brother’s fiancée and stole a flat screen television and a digital20

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 c ourt 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 a t 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 ste ady 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 n o 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. Br adds 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 d welling, 3

- year maximum; fourth

- degree burglary theft, 3

- year maximum; theft $100 to u nder $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 cour t date is February 15th at the Patapsco Avenue District Courthouse. Mr. Bradds, do you understand the charges and the ri ghts I explained to you earlier?21 MR. BRADDS: Yes, Your Honor. THE COURT: Okay. Pretrial? PRETRIAL INVESTIGATOR: Your Honor, Defendant re fused 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, misdeme anor CDS. He has one PBJ from June 2011 for CDS paraphe r nalia. 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 statemen t of probable cause at this stag e

– 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, pol ice 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 w here 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 addi tion, 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 continu ed 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 be22 inside the house on the day in question. That is the Statement of Charges. PRETRIAL INVESTIGATOR: In light of those allegations, Y our 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 C ounsel] 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 un secured 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 Mc Henry 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 a nd so rt 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 po ses 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 we ll. 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 start ed that last week on the 16th, which I think would’ve been Wednesday of last week. He actually went to Univer sity of Maryland

– because he’s

–23 THE COURT: No, it would’ve been last Tuesday. [ DEFENSE COUNSEL ] : Tuesday, my apologies, he is suffering from pneu monia, 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 wo uld not e 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 po int 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 Hono r. 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 appr opriate. 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 vict im, 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. (E mphasis 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 habe a s 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 been24

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 peti tion 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 Baltimor e 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. A n attorney from the Office of the Public Defender represen ted 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 in25

Maryland, as well as convictions in West Virginia for domestic violence, breaking and entering, dayti me houseb reak, 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 Sam uel Lloyd Hill, Jr., Case No. 5B02365242. Thank you, Mr. Hill. Mr. Hill, you are charge d in this matter with burglar y 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 f ourth

degree bur glary, 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 carr ies 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 whi ch 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 misdemeano r 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 and26 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. M ost recent out of state convict ion for breaking and entering and burglary was during the year of 2013. The Defendant’s most recent FTA was during the year of 20 09. 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 COU RT: 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 par ole 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 reco rd. 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 COUR T: 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 COUN SEL ] : 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. A nd 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

– Pretr ial, 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 C ourt.28

I n 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 wa s 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 remand ing the cases
to the circuit co urt 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
det ention , 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 condition29

of release with financial terms .” I d ., (b)(2). Fina ncial 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 t erms 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, t he record before the bail review court could have supported a range of
outcomes. Bo th 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 w rongfully entering onto another’ s property, but rat her from the possibility of a face

- to

- face confrontation between the30 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 po ssibility 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
dwe lling house of another creates ‘ a subs tantial 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 th e 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 from31

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 r isk , 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 recogn izance , 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 supervis ion, drug screening, no contact with victim, stay away from 349

– o r, no , 346 South Payson Street ”

— but only as conditions that
would kick in “if” Mr. Bradds posted bail. This pl aced 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 Rule s 4

- 216 and 4

- 216.1(c)(1) required the court to determine his ability to pay and set bail at a l evel 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 a t 10 percent. Like Mr. Bradds, the record would have supported a decision t o 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 consider32

non
- financial conditions first and then, only after finding a financial condition necessary, required it to co nsider “ 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
combi nation 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 prohibit ed 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 incapa ble 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 court s had a record on which they could have determined whether these defendants should have been held as dangerous or as flight risks. Once the court s decided not to hold the se defendants , the y should have considered non

- financial conditions before considering
financial conditions. And once the court s considered and rejected non

- financial conditi ons, the court should have assessed the defendants’ financial status and set financial conditions
that th ey had an opportunity to meet. Because the court s set bail without considering
alternative non
- financial condition s or assessing the defendants’ abilit ies to satisfy
financial conditions , we reverse d 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 court s did not intend for these defendants to be released pending
trial , t he court s should not have accomplished th at goal by setting bond at a level these
indi gent 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 satisfy ing. 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 oppo rtunity to achieve his release. Financial conditions designed to thwart or eliminate the possibility of release violate the letter of the applicable Rules and the p rinciples underlying them. We do not mean remotely to suggest that the Rules entitled these defendant s to be
released. Again, the record before bail review court s contains undisputed information that could have supported findings to hold both of them had the court u ndertaken the correct analysis. But because the court s decided not to do so , then skipped over any consideration
of non

- financial conditions, its decision s to impose these financial conditions on these indigent defendants were inconsistent with the revised Rules.