Two years after a decision by the state's highest court mandating that criminal suspects be represented by counsel at every stage of their cases, including the initial bail hearing before a commissioner, we still have no sustainable plan to make that happen. Instead, lawmakers once again punted on the issue this year by approving a last-minute, $10 million fund to pay private attorneys to represent indigent defendants at their initial bail hearings — even though that amount may be grossly inadequate to cover the 160,000 such hearings held each year in Maryland.
That's why yesterday's announcement by the chief judge of Maryland's District Court that the state will begin drawing on that fund starting July 1 should serve as a wake-up call to legislators that this matter can't be put off indefinitely. If the amount in the fund isn't large enough to cover the costs of all the defendants who are entitled by law to counsel, county governments rightly fear they may have to make up the difference, which could amount to tens of millions of additional dollars.
Clearly this is an unacceptable situation, and the blame falls squarely on lawmakers for failing to resolve an issue they've had at least since 2012 to address. It needs to be fixed now, even if that means convening a special session of the legislature later this year to consider the problem and come up with a solution that both serves the interests of justice for indigent defendants and is financially sustainable for local governments.
The 2012 ruling by the Maryland Court of Appeals requires the state to provide counsel to suspects who can't afford their own lawyers at the very first stage of their involvement with the criminal justice system, when they are brought before a court commissioner after their arrest. At that initial hearing the commissioner decides whether to release them on their own recognizance, require them to post money bail of a set amount or hold them in custody pending trial.
Those decisions are later reviewed by a judge at more formal hearing, usually held within 24 hours, at which poor suspects are entitled to be represented by a public defender who can challenge the commissioner's recommendations and present evidence that the suspect is neither a flight risk nor a danger to public safety and should be released pending trial. Yet in practice judges rarely overturn the commissioners' decisions regarding bond amounts and pre-trial incarceration. The result is that indigent defendants who can't afford a lawyer are far more likely to end up in jail until trial than suspects who can afford to be represented by counsel at their initial hearings.
But in requiring all suspects to have the advice of an attorney at their initial hearing the court created a system that outstripped the capacity of Maryland's Public Defenders Office, which said it would need up to a year to train enough new lawyers and a $30 million increase in its budget in order to handle the increased volume of cases. Last year lawmakers tried to avoid appropriating the additional for public defenders by a change in the law meant to sidestep the court's decision, but that measure was later ruled to be in violation of the state's constitution. This year several proposals were advanced in Annapolis that either would have greatly limited the impact of the court's decision or — most promisingly — drastically reformed the bail process by substituting the court commissioners' hearings with an objective risk-assessment formula for determining whether suspects are eligible for release.
In the end, however, the legislature failed to pass any of those measures, effectively leaving the issue up in the air. The court rightly recognized that the current bail system unjustly denies poor people their rights, and it is moving forward to rectify the problem whether the other branches of government provide it sufficient resources or not. But in the likely event that the money runs out, the governor and General Assembly need to step in to find an alternative solution. Local governments should not be saddled with an open-ended expense just because state lawmakers can't get their acts together.
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