www.baltimoresun.com/news/opinion/editorial/bs-ed-bail-20130926,0,3267683.story

baltimoresun.com

The right decision on bail

Our view: Defendants should have lawyers whenever their liberty is at stake

12:31 PM EDT, September 26, 2013

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The Court of Appeals decision this week that criminal defendants have a right to counsel at court commissioner hearings raises all manner of practical difficulties for the state. Commissioner hearings can take place 24 hours a day, 365 days a year, and the Maryland Public Defender's Office estimates that it will take as many as 250 more attorneys to handle the workload. That will be expensive and difficult to manage.

But it also serves to uphold a fundamental principle of our criminal justice system: No one should be deprived of his or her liberty without having access to counsel, and that right should not be contingent on a defendant's ability to pay for a lawyer.

This week's decision represents a revisiting of an issue the court decided in 2012. Then, the court based its decision on the plain language of Maryland's public defender statute and saw no need to address the matter as a constitutional question. That left open a window for the legislature to reverse the court, and it did, quickly passing a law that specified that the right to counsel through the public defender's office did not extend to court commissioner hearings. The plaintiffs asked for reconsideration on state and federal constitutional grounds, and a 4-3 majority of the state's highest court found that the right to counsel at commissioner hearings is granted in the Maryland Declaration of Rights.

Chief Judge Mary Ellen Barbera, who wrote the majority opinion in the 2012 ruling, dissented this time. She found the legislature's action to be a reasonable balancing of the needs of practicality and justice, given that the legislature did enshrine in law a guarantee of counsel at the bail review hearing, which takes place before a judge as soon as possible after the commissioner hearing. "The initial bail hearing before a commissioner does not result in a final determination of incarceration because no decision made by a commissioner will lead to a defendant's languishing in custody without judicial review," she wrote.

With all due respect, that's easy for her to say. Because of weekends and holidays, those denied bail or given bail amounts beyond their ability to pay frequently must wait 48 hours or more in jail before having the opportunity to have their case heard by a judge. That in and of itself is a substantial infringement of a defendant's liberty and one that can have profound practical consequences, ranging from the cost of a non-refundable bail bondsman's fee to a lost job. Moreover, despite the fact that bail review hearings are not supposed to be influenced by the commissioners' decisions, judges typically do not overrule them. Thus, a 48-hour stay in jail can extend to weeks or months.

Why is a lawyer important? Commissioners consider not just the severity of the crime with which a defendant is being charged. They also consider family ties, employment history and other factors in deciding whether to release a defendant on his or her recognizance or in setting the amount of bail. Having an attorney who is well versed in the process is the best way to guarantee that a commissioner will consider all the relevant information before making a decision.

The majority put it well: "...arrested individuals may be functionally illiterate and unable to read materials related to the charges. ... Moreover, studies show that the bail amounts are often improperly affected by race."

As the state evaluates the costs and practical difficulties of complying with this decision, officials need to consider how many people are now held in jail for days, weeks or even months who did not need to be and who might well have been released before trial if they had the benefit of a lawyer. Hiring 250 public defenders may seem costly, but so are the thousands of days that defendants spend in jail unnecessarily.

Not all states have a court commissioner process like Maryland does, and in places where initial bail amounts are set by judges, waits of as much as two days are routine. Maryland's system is an important innovation that serves the interests of justice and practicality — those who can be released pending trial should be as soon as possible both to avoid unnecessarily limiting their liberty and to avoid the expense of holding them in jail. But it should not be an accommodation that is fundamentally limited by the defendant's socio-economic status. It's one thing for the state to build new toll lanes on I-95 to allow those willing and able to pay to bypass congestion. It's another to do that in the criminal justice system.