Miller's solution without a problem

After three years, the Maryland legislature is still fighting public defenders for the poor.

We're not sure exactly what it was that got Senate President Thomas V. Mike Miller so worked up last week that he hijacked a bill hearing to demand that lawmakers find a "solution" — with less than two weeks left in the legislative session — to a requirement that the state provide public defenders for poor people at their initial bail hearings. But even if such an effort is permissible under the federal constitution — which we doubt — it would be fiscally foolish.

"We have a problem that exists that's not getting solved," Mr. Miller heatedly told members of the Senate Judicial Proceedings Committee Wednesday, referring to the lawyer requirement, which legislators have been trying to sidestep for several years and finally implemented under duress in July. "Do what you're supposed to do, work your asses off, find a solution."

By Thursday, he was urging legislators to lessen or end the financial burden the requirement posed — around $6 million in the current fiscal year — and threatened to set up his own study group to tackle the issue over the summer.

The Senate responded that afternoon by suspending its rules to allow for the late introduction of a bill that would amend the state's constitution to deal with the supposed problem. A hearing was hastily arranged for Good Friday, hours before the beginning of Passover.

The bill would add language to the Maryland Constitution to explicitly state that it can't be "construed to require government-funded legal representation of an indigent defendant at an initial appearance before a district court commissioner."

In other words, it would target the poor — disproportionately people of color — as an unequal group without specific, court-determined due process rights; those who can afford an attorney can still have one at initial appearances, those who cannot would be out of luck.

The bill's chief sponsor, Sen. Michael Hough, a Frederick Republican, said it was an "out-of-control, activist Court of Appeals" that ruled Maryland's poor people should have taxpayer-provided attorneys when their freedom is initially at stake in the first place, and he threw out various numbers to prove the futility of the practice.

But they don't stand up to scrutiny.

"We're spending $10 million so we can have basically no change in what's going on," Mr. Hough said during Friday's hearing, complaining that the rate of defendants released on their own recognizance (ROR) has only improved 3 percent.

But 3 percent — which actually may be more like 7 or 8 percent, according to Maryland Public Defender Paul DeWolfe — is huge.

Let's look at the numbers: In 2012, there were about 173,000 initial bail hearings before court commissioners. A 3 percent increase in the ROR rate means 5,200 fewer people in jail waiting for trial annually, according to Mr. Hough's figures, and as many as 13,840 fewer, according to Mr. DeWolfe's. That's a lot of people — a lot of people who cost between $83 and $153 a day to house, according to a December report from the Governor's Commission to Reform Maryland's Pretrial Release System. With an average pretrial jail stay of around 39 days, the state is saving between $16.8 million in incarceration costs on the low end of the estimates and $82.5 million on the high end. That's well worth the $10 million the judiciary is budgeting annually to pay for public defenders — not all of which is even being spent.

Mr. Hough also complained that nearly two thirds of those eligible for public defenders are turning them away. That does seem a senseless waste of an opportunity to us, but one that defendants — who are presumed innocent under the law, we might add — still have the right to make. Nonetheless, it makes us wonder if there are things about the public defender application process that are turning defendants off. Maybe the forms are confusing, or defendants believe they'll be unnecessarily delayed by going through the process.

Given the numbers, it would appear that Mr. Miller would be better off putting together a study group to determine how Maryland can encourage more indigent defendants to turn to public defenders, in the hopes it would keep more of them free before trial and save the state even more money.

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