The Maryland General Assembly passed bills this month that effectively reverse a Court of Appeals ruling that would have required public defenders for indigent defendants at thousands of initial bail hearings held before court commissioners each year.
The legislation instead requires lawyers for poor people at reviews of those hearings, which occur less frequently and take place in front of a judge — sometimes days later. That means some of those arrested and denied bail or unable to afford it could spend a weekend or longer in jail awaiting representation.
The Open Society Institute in Baltimore, a nonprofit that works to address inequalities, held a forum on the issue Thursday and plans to follow up with another session next month, led by Maryland Public Defender Paul DeWolfe.
At this week's forum, Doug Colbert, a Maryland law professor who worked on the case that led to the ruling in January by the state's highest court, decried the Assembly's action, calling the lack of representation at all stages of the court process a constitutional violation and "human rights crisis."
But DeWolfe, who was in the audience Thursday, said the Court of Appeals decision amounted to a "$28 million unfunded mandate." He said it would have required his already overworked staff to attend roughly 180,000 hearings a year that are held 24 hours a day, seven days a week.
It "would have decimated the ability to do the work that we already do," he said. DeWolfe said he supports the concept, but providing counsel for initial hearings cannot be carried out without substantially more resources.
The new legislation is expected to have minimal or no added cost. In addition to requiring the appearance of public defenders at bail-review hearings, it limits the power of court commissioners to issue arrest warrants based on allegations by citizens. The law also requires police to issue citations for certain misdemeanors or ordnance violations, rather than take offenders into custody, where they might face incarceration pending trial.
Colbert and DeWolfe praised those provisions. They also acknowledged that further debate on the issue is likely.
In its ruling, the Court of Appeals said the lack of representation at initial hearings raises constitutional issues, and those are likely to again be raised in court.
Legislators failed to pass a provision that would have required judges to work weekends to conduct bail review hearings in a timely manner, which could create a "huge gap" in timeliness for some arrested toward the end of the work week, DeWolfe said.
The legislation also established a task force to study Maryland's laws and policies on representation of indigent defendants and to make recommendations for improvements.
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