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Challenge Survives to Maryland County’s Cash Bond Program

by David M. Reutter

Finding that changes in pretrial release procedures of Prince George’s County “may or may not be ameliorative,” the federal court for the District of Maryland on June 7, 2023, refused to dismiss a complaint filed by a group of pretrial detainees who claim the county’s bond review process and pretrial release program are unconstitutional.

The suit was filed almost a year earlier in July 2022 against the county, its jail officials and 11 of its judges by a group of pretrial detainees. They alleged that during bond reviews in the county’s district and circuit courts, judges “abdicated their constitutional duty” and unlawfully deferred to the county jail’s pretrial services program to determine a defendant’s level of supervision or release from jail.

Despite being entitled to release, many defendants often languish in jail for weeks or months while waiting for pretrial services to make a determination on their release eligibility, the lawsuit alleged. Plaintiffs called the process opaque, saying it was bogged down in backlogs. They sought class-action status.

Defendant county officials and judges moved for dismissal, asserting immunity and also arguing that a federal court had no jurisdiction over the issues. They further argued the lawsuit was “moot” because many plaintiffs had been released. Moreover, they said there could be no due process violation because a pretrial program is not required by the U.S. Constitution.

“Because the jail offers this alternative potential for release, it is confounding why plaintiffs would complain about it. The jail is under no obligation to offer the service,” the County wrote in a footnote of its motion. “The familiar sayings of ‘Don’t bite the hand that feeds you’ and ‘Be careful what you ask for’ come to the forefront of one’s mind in these circumstances.”

The County also took issue with the work of volunteers from Courtwatch PG, who spent three years watching court proceedings and taking notes that went into a database. Calling the suit “vexatious” and the volunteers “at war with the system,” the County said they had made “observations and impassioned complaints about them that have little or no legal import . . . and then ambushed both judiciary and County with this lawsuit.”

“We’re not the enemy; we’re not trying to go to war. We come in peace,” insisted Courtwatch PG Director Carmen Johnson. “We didn’t ambush them on this. We’ve been doing accountability letters on pretrial for over a year.”

On January 24, 2023, U.S. District Judge Peter J. Messitte weighed the merits of the motion to dismiss by county officials. He chastised them for not having a more efficient and transparent process for evaluating defendants for release from jail, saying “simple” changes could improve the system. Nevertheless he agreed with them that Plaintiffs had no cause of action for money damages, only equitable relief. He therefore dismissed claims by any plaintiffs who had been released. But claims of the remaining plaintiffs were allowed to proceed. See: Frazier v. Prince George’s Cty., 2023 U.S. Dist. LEXIS 12691 (D. Md.).

Plaintiffs appealed to the U.S. Court of Appeals for the Fourth Circuit. They also filed a motion for reconsideration with the Court, and so did the judges who were defendants, seeking to be fully dismissed from the case. The County also filed for dismissal, presenting its newly revised pretrial release procedures. But the Court denied the motions.

Plaintiffs’ argument for money damages was distinguishable from a settlement New York City entered with pretrial detainees at its Rikers Island jail complex, the Court said, because in that case jail officials ignored judicial orders. Here, though, orders by the defendant judges were faithfully executed.

But they could not be dismissed from the case yet, the Court continued, because Plaintiffs’ attempts at class certification had been denied without prejudice to their right to try again. Therefore “it makes sense to keep the current roster of Judge Defendants in place,” the Court said, since “all of [the judges] might be subject to such remedy as the Court might order.” See: Frazier v. Prince George’s Cty., 2023 U.S. Dist. LEXIS 99937 (D. Md.).

Defendants moved to certify the case for partial appeal, but that was denied on August 9, 2023. See: Butler v. Prince George’s Cty., 2023 U.S. Dist. LEXIS 140292 (D. Md.).

Plaintiffs are represented by attorneys with Civil Rights Corps, Wilmer Cutler Pickering Hale and Dorr LLP and the Georgetown University Law School Center for Constitutional Advocacy and Protection, all in Washington, D.C. They worked closely with public defenders and Courtwatch PG in formulating the lawsuit. Both this case and Plaintiffs’ appeal remain open, and PLN will update developments as they are available. See: Butler v. Prince George’s Cty., USDC (D. Md.), Case No. 8:22-cv-01768; and Frazier v. Prince George’s Cty., USCA (4th Cir.), Case No. 23-6359. 

Additional sources: DCist, Washington Post