"After seven years of litigation, what's a few more months?" judges on the Maryland Court of Appeals apparently thought to themselves when issuing an order this week to yet again delay a requirement that defense lawyers be made available at bail hearings — an obligation they earlier ruled necessary under the state constitution.
The problem is, every three months translates to thousands of poor people — some 10,000 in Baltimore City alone, mostly African Americans — being denied their right to an attorney. In the six months since the state's high court found that defendants are constitutionally entitled to representation when their liberty is at stake (in a case known as "Richmond"), about 20,000 people have attended city bail hearings without the benefit of a public defender.
The situation exists because the appeals judges have yet to set an effective date for the rules of practice and procedure connected to their September decision (which reaffirms a 2012 decision that was also put on hold). And some in the state are busy fighting the finding altogether, claiming Maryland can't afford the associated price tag, which is likely overestimated at $30 million.
The alternative they are willing to accept, then, is a two-tiered justice system where defendants only get lawyers during bail hearings if they can afford them. Among those who have rooted for the decision to be overturned are Gov. Martin O'Malley, Senate President Thomas V. Mike Miller and Attorney General Douglas F. Gansler, a gubernatorial candidate.
To their credit, the judges declined to revisit the ruling during a hearing held earlier this month, instead taking up only the issues of how and when it can be effectively put into place. They could have forced the state to start right away but appear to have instead been swayed by a request from the state to wait to see if the legislature comes up with a workable fix.
In their order this week, the judges called for another hearing to be held on May 6 to discuss the timeline — a day before the end of any potential extended legislative session — followed by the issuance of another order on June 5, after all bills have either been signed or vetoed.
But given the legislature's record on this issue, it's unclear what's to be gained by waiting. The last time the legislature acted in response to an appeals court ruling about providing public defenders, it was in 2012 to amend the state's Public Defender's Act to expressly state that lawyers aren't required at initial bail hearings held before court commissioners. That didn't pass the constitutional test, however.
Perhaps the most likely outcome this time is that legislature will do nothing, meaning more wasted time. That would be a mistake. This has already gone on too long.
The Maryland General Assembly is considering a half dozen proposals for dealing with the ruling, though none of them would take effect before October, and the most thorough of them couldn't begin before 2015. They typically fall into one of two camps: those trying to make it harder to get a public defender and those trying to reform the pretrial release system altogether.
In the former category are bills by Sen. Robert A. "Bobby" Zirkin (Senate bill 748), Del. Joseph F. Vallario (House bill 1277), and Del. Curt Anderson (House Bill 985). Their bills would, respectively, limit public defender representation to normal business hours; limit the representation to the bail hearing only; and require that a person's eligibility for a public defender be thoroughly investigated at a significant cost prior to representation. We don't think any of these ideas help the situation.
Bills looking to overhaul the system have been introduced by Sen. Brian Frosh (Senate bill 973) and Del. Kathleen Dumais (House bill 1232). Their bills would revamp pretrial release systems and require the use of an objective risk assessment tool for determining whether arrestees could be released by an administrative officer, negating the need for attorneys and cash bail in most cases. The bail bonds industry is predictably fighting this plan; it would lead to a significant reduction in their business. Though this is the most complicated plan of action, it's also the most likely to produce a fair and viable long-term solution.
We get that it's a complex issue and that budgetary concerns are real. But two years have passed since the court issued its first ruling on this, and another six months since the second. It's time to stop playing games with people's rights and change the system.
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