Last week, Baltimore Circuit Judge Alfred Nance gave a powerful boost to the cause of justice when he ruled that unless criminal defendants in the city are provided with lawyers at the time their bail is set, they must be set free until trial, effective immediately. The state has dragged its feet long enough in finding a way to comply with the Court of Appeals' two decisions mandating counsel at court commissioner hearings, and as lawmakers take up the issue again in the current General Assembly session, the judiciary needs to make clear that it won't back down on this matter.
As a practical issue, though, the Court of Appeals should stay Judge Nance's order when it considers it on Thursday. It's simply not possible for the Office of the Public Defender to hire and train enough lawyers overnight to provide attorneys in every case, and the result inevitably would be that some people who do pose a danger to the community would be released before trial. Though our current system of pre-trial detention tends to sweep up far too many people who don't need to be in jail, there is no question that some do. The state's high court surely must recognize that.
However, the judges need to erase any doubt about the importance of the constiutional questions at stake here. Both Gov. Martin O'Malley and Senate President Thomas V. Mike Miller said this month that they still did not consider this issue settled and hope to have it re-examined given turnover in the court. Notably, the new chief judge, Mary Ellen Barbera, wrote a dissenting opinion in the case that established that defendants had a right to counsel at initial bail hearings under the Maryland constitution.
But neither the standing of the court nor the cause of justice would be served by a flip-flop on this issue. As advocates for change to the pretrial release system have long argued, defendants are treated more fairly and have a better chance of receiving a bail amount they can afford if they are represented by a lawyer at all stages. A system that allows the rich to walk while consigning the poor to the slammer is neither fair nor just.
To her credit, Judge Barbera has been actively engaged in seeking remedies to that situation. A representative of the judiciary recently floated a proposal to streamline the system to provide a single bail hearing before a judge — but only on week days and not on holidays, a limitation that would set up a two-tiered system of justice. Nonetheless, the idea represented a good starting point for discussions.
The state public defender's office estimates it would need an extra $26 million to $32 million a year to provide lawyers for all the suspects who come before bail commission hearings — a 30 percent increase in its current $90 million annual budget. That expense would almost certainly be repaid in savings to the corrections system when fewer low-risk offenders are housed at taxpayer expense before trial. Ultimately, though, the best approach may be one proffered by a legislative panel: making pre-trial release decisions dependent solely on risk. Low-risk people could go free while high-risk defendants would be detained regardless of their ability to make bail. A third group of moderate-risk defendants would be required to submit to supervision by state corrections officials through electronic home monitoring and regular visits from pre-trial release officers.
Whatever combination of steps the state takes to achieve the goal of fairness for all those who are arrested, it's going to take action by the governor and General Assembly, and likely some reasonable transition period to hire and train the personnel needed to carry it out. When it considers Judge Nance's order on Thursday, the Court of Appeals should recognize that. But it should also recognize the very real possibility that a reluctant governor and legislature could fail to act before they adjourn at midnight on April 7. With that in mind, the court should put Judge Nance's order on hold until 12:01 a.m. on April 8. That should get lawmakers' attention.
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