Get unlimited digital access to baltimoresun.com. $0.99 for 4 weeks.
News Opinion Editorial

The right decision on bail

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.

Copyright © 2015, The Baltimore Sun
Related Content
  • Baltimore school funding [Poll]
    Baltimore school funding [Poll]
  • Fund the student, not the college
    Fund the student, not the college

    President Obama's "America's College Promise" plan proposes to make the first two years of community college free to address a number of concerns: American competitiveness, inequality and the bad odds that less advantaged students face in obtaining good jobs.

  • Googling America's sex life
    Googling America's sex life

    Google knows my dress size and that I wear flats. It knows I do yoga, and it is always trying to sell me clothes to wear to class.

  • Improper race and religion references in Adnan Syed trial
    Improper race and religion references in Adnan Syed trial

    The trial that culminated in the 2000 conviction of Adnan Syed has been a hotly debated subject in recent weeks, largely because of the popular "Serial" podcast that examined the case. That debate will no doubt intensify in light of a brief that Mr. Syed's current counsel filed this month...

  • Under Armour's gift
    Under Armour's gift

    Under Armour evidently wants to get into the law enforcement officer uniform business, and they have what sounds like a scheme to get free marketing and field testing of their new products by outfitting one Baltimore police district with them for free. Sounds like a great idea to us, yet the...

  • Does Maryland have the political will to restore the bay?
    Does Maryland have the political will to restore the bay?

    On Oct. 4, Jay Sadowski, an avid fisherman and hunter, died of leukemia at age 59. The cancer was discovered while he was being treated for a flesh-eating infection he contracted while fishing in the South River near where Gov. Larry Hogan lives. The infection ravaged his body even before the...

Comments
Loading