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Getting out of jail free [Editorial]

A favorable Senate committee vote this week for the amended Senate Bill 973, which would solve a state public defender problem and offer some measure of bail reform, was a step in the right direction that should be repeated by the rest of the legislature.

The bill would prevent court commissioners from making decisions in the pretrial release process — negating the need for public defenders to be there, as a Maryland Court of Appeals ruling requires — and instead use a computerized risk assessment tool to determine which arrestees can be set free sans bail. Those held over would go directly before a judge for a hearing, where bail could be ordered and indigent defendants granted state-provided counsel.

The proposal has support from a broad cross section of stakeholders — including the Maryland Public Defender's Office, the administration and various state prosecutors and local corrections facilities. But it's still got an uphill battle before it reaches the governor's desk.

It represents a sea change in the way Maryland processes people after an arrest, substituting a hard-and-fast scientific gauge for human subjectivity in deciding who's most likely to return to court and to not pose a risk to the public. That's a hard thing to wrap your head around, particularly when reforms of other courts call for the opposite (Some immigration court reformers, for example, want fewer rules and more leeway to release defendants).

The example system shown to Maryland legislators, developed by the Laura and John Arnold Foundation, uses risk predictors created after studying 750,000 cases from more than 300 jurisdictions nationwide. It is being tested with success in Kentucky and other areas — but typically as a tool that informs judges, rather than one that makes the final decisions on whether thousands of people will be released pending trial. That's a little scary, certainly, and not the kind of decision a state legislature usually makes on the fly. But in delaying a hearing earlier this month on the matter of public defenders at bail hearings, the Maryland Court of Appeals sent a clear message that it wants the General Assembly to act fast.

The judges ruled in 2012 that defendants have, under state law, a right to counsel at bail hearings presided over by commissioners, and in 2013, they ruled that the right was also provided for by the state constitution. Implementation of that decision has been stayed several times, most recently until the end of the legislative session. That leaves two options: Come up with a compromise or start staffing commissioner hearings with public defenders at a cost of between $30 to $55 million, depending upon which estimate you accept.

Senate Bill 973, introduced by Sen. Brian Frosh, is clearly the best option. Amended, it comes with a $16 million price tag and skirts the commissioner/public defender requirement by taking the commissioners out of the equation (a move the state attorney general's office has sanctioned as legal). It would also speed up the release process and help keep poor people arrested for minor crimes out of jail pending trial. On any given day, a couple of dozen people usually languish in Baltimore's Central Booking facility because they can't scrape together $100 to pay a bondsman to cover their $1,000 bail. Those released based on the computerized system won't have to pay any bail, though they will be supervised while they're out.

The bail bonds industry is fighting this plan. It will have a "meaningful" impact on their business, according to a fiscal note accompanying the bill. But it won't put them out of business, as other proposals (like ending cash bail altogether) might. Those charged with certain crimes — including domestic violence, being a drug kingpin and sex offenses — are not eligible for release under the computerized system, and must face a judge for a bail hearing. They will still undergo the analysis, which will help inform the judge. And court commissioners will still be needed to help facilitate the process and to do all the other things they do.

The biggest problem for the risk assessment proposal is that it will take a while to implement, likely well into next year. If it is passed and signed into law, the appeals court will have to decide whether some kind of bridge process is needed in the meantime, or if they want to continue to stay their ruling.

Many complain that it was a bad ruling to begin with, but the time for whining has passed. The court has spoken, and, as one prosecutor put it, "If we don't act now, all hell will be foisted upon us."

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Copyright © 2015, The Baltimore Sun
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