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Attorneys at bail hearings would unclog the court system; Counsel could prevent needless incarcerations

THE BALTIMORE SUN

IF A PROSECUTOR had reviewed Eric Jones' arrest on a four-year-old warrant for stealing a roast beef from a former employer, Jones would not have spent 21 days in jail. A prosecutor would have learned that the employer wanted only to fire Jones and would have realized that the one-year statute of limitations had passed. Instead, Jones was jailed because he couldn't post the $7,500 preset bail bond.

A prosecutor's review would have prevented Michael Dukes from spending 17 days in jail after he was arrested for riding the light rail without paying. His offense does not carry a jail sentence, but he was locked up after he couldn't pay a $95 fine.

The liberty of Jones and Dukes would have been protected if they had been represented by lawyers. But neither could afford private counsel, and the state does not provide lawyers for indigent people when they appear at bail hearings in Baltimore and in most Maryland counties. This might come as a surprise to many people. It certainly surprised me after I've spent 20 years practicing law and supervising law students in New York City, where lawyers are present at the crucial bail stage.

While public attention is focused on the most egregious examples of Baltimore's judicial morass, such as indefinitely postponed murder trials, a far more insidious problem occurs daily. Scores of people are being jailed at the bail stage because they don't have defense lawyers and because no prosecutor reviews arrests to determine whether charges should have been filed.

Jones and Dukes were fortunate to find students at the University of Maryland Law School who filed emergency habeas corpus petitions for them. Otherwise, they would have joined the about 2,000 people who are incarcerated in Baltimore daily on nonviolent, usually misdemeanor charges for at least 30 days before appearing in court. Most of these individuals remain in jail for one or two days -- not months -- when they have lawyers.

Also, with legal representation at their bail hearings, many would have avoided losing their full-time jobs and been able to continue providing for their families. Moreover, the public would not be left responsible for paying the exorbitant costs of pretrial detention.

In Baltimore, most judges conduct bail hearings quickly. The heavy docket prevents many of them from obtaining important background information about the accused. These individuals are not in the courtroom but remain in jail and appear on a video screen as the judge presides in a nearly empty courtroom.

Without defense lawyers on hand, judges know that their decisions won't likely be appealed. The results are predictable. For the unrepresented, judges usually rubber-stamp a bail commissioner's decision, even when the charges are relatively minor and the bail amount is clearly beyond the person's means.

While bail for most nonviolent offenses ranges from $2,500 to $5,000, some judges are notorious for setting bails ranging from $10,000 to $100,000 for such charges as driving with a suspended license, prostitution, disorderly conduct, petty theft, simple drug possession and failing to report to a probation officer.

Many judges also engage in the highly questionable practice of ordering a preset bail amount when an unrepresented person fails to appear in court, despite not knowing whether the absence was justified. When the accused individual is apprehended or voluntarily appears, another judge will probably defer to his colleague's preset bail order and refuse to consider a modification. Because District Court cases are regularly postponed for a month, the preset bail order becomes tantamount to imposing a minimal 30-day sentence on anyone who cannot afford to post the amount.

The bail policy places a heavy burden on the poor and working poor in the pretrial population. Generally, Baltimore's pre-trial jail population is about 3,500, and about half are incarcerated for approximately 45 days because they lack $500 or less to pay bail. Astonishingly, most will be released without ever being convicted of a crime.

There is much work to be done to fix Maryland's criminal justice system and to justify the often-heard claim that our nation is second to none in protecting individual freedom against unjust incarceration.

We must begin directing serious attention to the initial checkpoint when each of the 210,465 individuals charged with committing crimes last year entered the Maryland justice system. Because 91 percent of these mostly misdemeanor cases remained at the lower, District Court level and usually were dismissed or not prosecuted, we would be wise to devote additional resources so that public defenders and state's attorneys are present at the post-arrest and pretrial stages. Fortunately, the system's major players seem to recognize that the checks-and-balances system at the entry stage is in disrepair and requires immediate attention.

Consider prosecutorial review of police arrests. Maryland's Chief Judge Robert M. Bell, Baltimore City Police Commissioner Thomas C. Frazier, and defense and prosecuting attorneys agreed with an outside consultant's recent report that urged prosecutorial oversight to ensure that individuals are properly charged.

The report was written by Philadelphia's administrative judges, who found that in Baltimore neither a state's attorney nor a supervisory police officer reviews a city police officer's decision to charge someone with a crime. Philadelphia had a court system similar to Baltimore's until about a decade ago.

When the district attorney assumed the charging function in Philadelphia, the system declined to prosecute 30 percent of the people arrested. As a result, the quality of arrests improved, prosecutors and judges avoided wasting limited resources on cases that had insufficient merit, and pretrial detention costs were significantly reduced, the report says.

No doubt Commissioner Frazier is concerned that some officers are taking advantage of the absence of prosecutors and defense lawyers, and misusing their arrest power. Recent reports of officers' frequent absences from court, leading to the dismissal of charges, suggest that these officers might view the purpose of arrest as summary punishment, rather than seeking a lawful conviction and appropriate sentencing. Indeed, as more than one officer has confided, "We send an important message on the street when people know we can take away their freedom for one month or longer, whether or not they are convicted."

Others in the system, particularly jail officials of the Department of Public Safety, feel the impact of unreviewed police arrests. Baltimore police officials say they are not implementing a zero-tolerance policy, but during the past two years I've seen an increase in arrests for nuisance crimes. Meanwhile, jail overcrowding has reached unsafe and dangerous levels for officers and detainees.

Last year, Baltimore's new Central Booking and Intake Center processed 84,000 arrests, an increase of 40 percent from two years ago. Given that the center was built to process 57,000 arrests and might exceed 100,000 this year, prosecutorial overview might help counter some politicians' calls for the building of a new, expensive jail facility.

But a larger role for prosecutors is only part of the solution. Defense representation at the bail review hearing is critical to promoting a fairer and better managed criminal justice system. Without a legal advocate, too many people who are gainfully employed or have strong family ties remain incarcerated for unnecessarily long periods when charged with nonviolent crimes.

The average nonviolent detainee spends 45 days in jail at a cost of $50 a day to taxpayers. Last year, it cost more than $70 million to incarcerate more than 40,000 pretrial detainees in Baltimore -- most of them charged with nonviolent crimes. For detainees facing indictments for serious charges, the delay of a lawyer's immediate representation often translates into long periods of pretrial incarceration and obfuscates the meaning of a speedy trial.

Since September, the Abell Foundation has provided me with funding to establish the Lawyers at Bail pilot program, which represents nonviolent offenders at Baltimore bail reviews. Before the program, such offenders had a 10 percent chance of gaining pretrial release. Most remained in jail for one or two months. The program's lawyers and paralegals have gained the release of about half the 900 people it represented within the first days after arrest.

How? By verifying for judges that about two out of five clients had full-time jobs, and others had homes, families and community support that made them good risks to return for their court cases. Not surprisingly, virtually all appeared on their scheduled trial dates. In addition, the program is able to identify weak or inappropriate charges much sooner and is helping to unclog a congested court system.

Guaranteeing counsel for an accused person is neither new nor radical. It is a re-affirmation of the equality and fairness principle announced by the Supreme Court 35 years ago in Gideon vs. Wainwright, when it declared that a lawyer was a necessity, not a luxury, for each person accused of a crime. The right to counsel is a bedrock principle of our legal system.

During the 1999 General Assembly, the Maryland State Bar Association will introduce a "Smart Courts" bill that would provide the resources to ensure representation at bail hearings. The bill has the support of Judge Bell, Secretary of Public Safety Stuart O. Simms, city State's Attorney Patricia C. Jessamy, Public Defender Stephen Harris and the Maryland State Police.

Though the Court of Appeals is likely to issue a favorable administrative ruling allowing prosecutorial review of police arrests, public support will be needed to persuade the governor and legislators that the proposed bill is a prudent use of public money. Some officials might cringe at providing additional resources for public defenders. They should consider the enormous benefits that result when lawyers' participation begins shortly after arrests rather than 30 days later.

The public should declare that its interest is in spending tax dollars to prosecute dangerous criminals, not for scofflaws such as Michael Dukes or accused food thieves such as Eric Jones.

Doug Colbert is a law professor at the University of Maryland Law School and the director of the Lawyers at Bail Project.

Pub Date: 01/17/99

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