With lawmakers still far apart on how to overhaul Maryland's bail system, legislative leaders and the O'Malley administration have cobbled together a short-term fix that involves an executive order and recruiting private attorneys for little or no pay to represent poor defendants.
At the direction of legislative leaders, a joint House and Senate committee has set aside $10 million in the state budget to address a ruling by Maryland's highest court that the current bail system is unconstitutional because it fails to provide lawyers early enough in the process.
Meanwhile, Gov. Martin O'Malley is poised to issue an executive order calling for development and testing of a computerized "risk assessment tool" that could streamline the legal process by quickly gauging the likelihood a defendant will stay out of trouble and show up for trial if released.
Architects of the fallback plan called it a way of dealing with the thorny legal issue until lawmakers can try again for a permanent fix next year.
"This is a bridge that will get us through to the next legislative session," said Nina Smith, the governor's press secretary. She said the administration was still committed to finding a long-term solution.
But others warned that the backup could backfire, potentially costing far more than $10 million while slowing the process of determining which defendants can go free pending trial.
"It means the process will be more protracted, and people will spend more time in jail, which is the opposite of what we want," said Sen. Brian E. Frosh, Judicial Proceedings Committee chairman and sponsor of that chamber's bail-reform bill.
The $10 million would go toward paying lawyers to stand with criminal defendants when they first appear before a District Court commissioner, who decides whether they can be released before trial. In a decision rendered in January 2012 and affirmed last September, Maryland's Court of Appeals declared that indigent arrestees lacked adequate legal representation during this process and ordered the state to remedy it.
But hiring more public defenders to represent poor defendants has been estimated to cost $55 million more in the first year alone – a price many elected officials consider too steep.
The appeals court stayed its most recent ruling until June 5, giving the General Assembly a chance to figure out an alternative. Lawmakers have been deeply divided over how to respond, however, and House and Senate have come up with completely different legislative approaches. With the 90-day legislative session ending Monday at midnight, leaders decided they needed something to show as a response to the court.
"This is a 'fail-safe' resolution," said Senate President Thomas V. Mike Miller, who's made clear he disagrees with the court's ruling. He contends that the only place where defendants spend excessive time in jail waiting to be released or post bail is in Baltimore City, but the ruling imposes a statewide change in the bail system.
"We're giving the judges $10 million out of their own budget," Miller explained, "and saying, 'Look, you created this problem, you can solve it by hiring [private] attorneys.'" And if it costs more than that, he added, the courts would have to seek the extra funding from the locality where the defendants need lawyers.
The Senate has overwhelmingly approved a bill sponsored by Frosh that would shift the pretrial release system to the computerized risk assessment that the governor also favors. But it has gone nowhere in the House, which in a preliminary vote Friday indicated that it wants to study the tool without committing to using it.
Instead, House members gave preliminary backing to a plan that would in many cases automatically release people without bail if they're arrested on offenses carrying a jail term of 18 months or less.
Del. Kathleen Dumais, vice chairwoman of the Judiciary Committee, said that even as the House is pushing forward with its own plan, it is discussing a potential backstop approach with members of the Senate.
"This has got some really good pieces to it," said Dumais, a Montgomery County Democrat. The idea of hiring private attorneys, at roughly $50 an hour, has been pushed in the House by Del. Jon S. Cardin, a Baltimore County Democrat.
A local prosecutor and a representative of the Office of the Public Defender both panned the backup plan.
"I don't think this really resolves it," said Scott Shellenberger, Baltimore County's state's attorney. "In fact, I think it could very well make it worse." In addition to detaining low-risk defendants in jail longer, he said, it would also tie up more police officers waiting for pretrial release hearings.
Shellenberger also warned of a potentially big tab for some local governments when the money in the state budget is used up.
"Anything over $10 million is going to be thrown back to the counties [to pay]," he said. "That's certainly something that nobody has budgeted for."
"If it's a patch, it's a very thin, very gauzy patch," said Ricardo Flores, government relations director for the Office of the Public Defender. "It's not calculated to work, quite frankly."
Charles Dorsey, deputy state public defender, said the state's courts took on the task of finding lawyers for defendants once before, and it quickly overwhelmed them because they lacked staff and resources. But Sen. Robert A. Zirkin, a Baltimore County Democrat who fiercely opposes the Frosh bill, favors the backup plan for using so-called "panel attorneys" — lawyers who are registered with the public defender's office to fill in when state-funded lawyers can't represent multiple clients in the same case.
Zirkin and Miller both suggested the "panel lawyers" could be supplemented with attorneys working for free and third-year law students operating under the supervision of a professor.
"There are so many law students who would welcome the experience," Zirkin said. "There are a lot of lawyers that don't have jobs right now."
But others questioned the availability of free legal help. They noted that under current court rules, law students can't represent clients unless accompanied by a licensed lawyer.
Frosh said he believed a "structural" change in the bail system is the only long-term solution.
Sen. Jamie Raskin, a Montgomery County Democrat, said he still hoped the House and Senate could make at least some progress toward a more comprehensive solution.
"Otherwise," Raskin said, "the Court of Appeals will just take it over. We've got to get it done — the right to counsel is sacred, but we can't break the bank."
Dumais said there are continuing talks between the House and Senate and wouldn't rule out the prospect of striking a deal over the weekend.
"It ain't over until midnight Monday," she said.