By Erin Cox and Ian Duncan, The Baltimore Sun
11:23 PM EST, February 7, 2014
Gov. Martin O'Malley and legislative leaders are pushing for a new system to quickly determine whether criminal suspects are eligible for release without bail — a move they say will resolve constitutional concerns over the rights of defendants before trial.
The overhaul would change a decades-old system under which District Court commissioners either set suspects' bail after arrest, deny bail or let them go. The state's top court has ruled that the process violates defendants' right to counsel because public defenders are not provided.
Under the latest proposal, a new state agency would use a computerized "risk-assessment" to identify people who do not have to post bail. Currently, commissioners release about half of defendants without bail.
That would eliminate an initial round of bail hearings — and with it the costly prospect of paying for public defenders at every hearing. The state already provides public defenders for poor defendants at the next stage in the process, in which judges review defendants' bail amounts.
"The goal is to incarcerate only people who need to be incarcerated," Senate President Thomas V. Mike Miller said Friday, minutes before his chamber agreed to fast-track a bill on the subject.
Lawmakers are rushing to respond to the Maryland Court of Appeals decision. The court's mandate to rectify the current system is on hold over a number of technical issues, but state officials say they are preparing to comply.
Providing public defenders at initial bail review hearings could cost an estimated $30 million each year.
While backers of the new proposal characterized it as a starting point for discussion, they said it represents a consensus about how the state should proceed.
Many of the details on how the new system would work — as well as how much it would cost — have not been determined. As Miller put it: "We're a long way from home."
Sen. Brian Frosh, chairman of the Judicial Proceedings Committee, said the proposed system would be less costly to implement. And, the Montgomery County Democrat said, "We'll get more people out [of jail] faster."
Del. Kathleen Dumais, vice chairwoman of the Judiciary Committee, introduced a version of the proposal in the House. She said it would take several years to put the program in place, and as a stopgap while commissioners are eliminated, the state would have to hire more judges. During that time, people might stay in jail longer as they wait to see a judge.
"There might be people who end up spending a night in jail instead of four of five hours," said Dumais, who is a Montgomery County Democrat.
Dumais said the proposal to revamp the pretrial release system was "just one piece of the puzzle" in a broader effort to reform the criminal justice system. Another bill, she said, would allow police officers to write tickets for a greater variety of crimes, sending fewer people to jail in the first place.
She said officials are also discussing the possibility of requiring that prosecutors screen charges to determine whether certain cases are without merit or lack evidence and should be dismissed immediately — possibly within hours of arrest.
"This is probably a multiyear project, and we may have to do it in small pieces," she said. "Some of it, we just have to see how it works."
Currently, upon arrest, people first see a District Court commissioner who reviews the charges to determine their validity and makes an initial bail determination. Anyone held after the hearing is then presented to a judge for another review.
The simplest option for complying with the court's mandate would be to provide public defenders at all hearings, but state officials have been put off by the cost of such a change.
All three branches of government have floated alternatives to deal with what's sometimes called the "Richmond decision," after one of the plaintiffs in the case.
At least half a dozen bills have been filed in this year's General Assembly session. Friday's proposal, which would put a new system in place by Oct. 1, has garnered the widest consensus to date.
It was developed by legislative leaders, including House Speaker Michael E. Busch and the governor's crime office, with suggestions from prosecutors, public defenders, and judges.
An O'Malley spokeswoman said they were looking for a solution that "will not just address the Richmond decision but improve our pretrial system overall."
Paul B. DeWolfe, head of the public defender's office, said he believes the change would bring the state into compliance with the court ruling because an administrative official, rather than a member of the judiciary, would make the first decision with the help of the computerized analysis.
The new pretrial agency would also have the job of supervising defendants out on the street and connecting them with any social or medical services they might need.
Other parts of the country, including Washington, D.C., and Kentucky, use risk assessments in combination with pretrial service agencies. Officials in both places say it is effective at getting people to court and keeping the public safe.
The legislative proposal broadly follows recommendations set out by a legislative task force last year, but that group also called for eliminating money bail entirely — defendants would either be held, or not, depending on a variety of factors. The proposal drew opposition from the bail bonds industry.
DeWolfe said the real test of the proposed new system would be how quickly defendants are processed.
"The question remains whether or not the proposal would add to the length of time someone arrested stays in jail prior to seeing a judge," DeWolfe said.
Scott Shellenberger, the Baltimore County state's attorney, said the existing system works well. But with the court ruling on the books, he said, the new plan "is a smart and reasonably priced thing to do."
A number of counties already run their own pretrial services agencies, and Shellenberger said he believes they would be allowed to keep them, as long as they decide to use the state's computerized risk assessment tool. He would support that move in Baltimore County.
Shellenberger said the timeline to establish the new pretrial agency and get the risk assessment up and running is "feasible, but I think it's going to be challenging."
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