Faced with a court decision that could cost tens of millions of dollars to pay for lawyers at bail hearings, the Senate and House of Delegates passed conflicting measures Thursday to limit the scope of the ruling — setting up a potential tussle between the chambers on which approach to take.
The Senate bill, which passed 45-1, would give suspects held by police the right to be brought before a judge with a defense lawyer within 48 hours. The House bill, which passed 133-0, would not. It seeks only to make clear that defendants are not entitled to a lawyer until they appear before a judge when the court is next in session.
At stake is whether court personnel — judges, prosecutors, public defenders and others — would have to work weekends at what could be a significant cost to taxpayers. Under the Senate bill, they would have to do so on a limited basis. Under the House approach, they would not.
The two bills are the General Assembly's response to a decision by the Maryland Court of Appeals last year giving prisoners the right to a lawyer both at initial bail hearings by court commissioners and later reviews by district judges.
People who have been arrested typically appear within 24 hours before a bail commissioner, who can release them on bail or their own recognizance, or order that they be held in jail. They typically have not been provided a lawyer for appearances before commissioners.
If they are ordered held or cannot make bail, they go before a district judge at the next court session — which could mean three nights in jail if arrested on a Friday evening, four if it's a holiday weekend. In most counties, defendants have not been provided a lawyer at this stage.
Maryland's high court said indigent criminal defendants are entitled to representation by a lawyer at each stage of the judicial process, including appearances before commissioners and district judges.
The decision created a stir in Annapolis because if fully implemented, it could cost the state an estimated $27 million for public defenders alone, plus costs to staff the state's district courts on weekends.
The appeals court based its decision on Maryland's public defender statute, not the U.S. or Maryland Constitution. That gave the legislature the leeway to hold down costs by changing the statute.
The House of Delegates essentially took that option, saying defendants are not entitled to a lawyer until they appear before a judge — immediately after a commissioner's action or when the court holds its next session. That approach would require no weekend work.
The Senate agreed to representation before a judge but added a requirement that defendants go before a judge within 48 hours of arrest, which could require courts to open for at least a few hours on weekends. It also approved a provision allowing many defendants to be released with citations.
Senate Judicial Proceedings Committee Chairman Brian E. Frosh said the House approach could backfire. He said that by simply abolishing the right to a lawyer at the commissioner stage, the state would run a risk that the courts would reinstate that right on constitutional grounds. That, he said, could expose the state to all of the expenses that would result from the original court decision, which he said could reach $30 million to $60 million a year.
"Most people think it's the sword of Damocles hanging over our heads," Frosh said.
Frosh told senators the 48-hour standard was a calculated gamble that the courts would accept the deadline as reasonable. Complying with the 48-hour rule, he said, would cost about $3 million a year.
After the Senate vote, Frosh predicted that the two chambers would work out a compromise before the middle of this month, when the appellate court's decision could start being enforced.