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Replace court commissioners with judges

Gregg Bernstein: Eliminate Maryland's court commissioner system and require judges to handle initial hearings.

In DeWolfe v. Richmond, the Maryland Court of Appeals held that a criminal defendant's first appearance before a judicial officer after arrest triggers the constitutional right to counsel under the due process clause of the Maryland Declaration of Rights. Before Richmond, arrested defendants appeared without counsel before court commissioners, who, although not judges, reviewed the sufficiency of the charges and made pretrial release determinations, including setting bail. As a result of the decision in Richmond, the state is now required to provide attorneys for indigent defendants at this initial stage, which has come at a very high price tag. In the last fiscal year alone, the state earmarked $10 million to pay attorneys to represent these defendants, although the judiciary has reported that it has been able to keep these costs under the budgeted amount.

While the court's holding in Richmond seeks to ensure that criminal defendants receive the advice of counsel at each stage of the criminal process, the "fix" of having attorneys paid by the state represent these individuals in their appearance before commissioners is short-sighted. For example, nearly 50 percent of those defendants who appear before commissioners already are released without any bail being imposed. Further, in the first year since implementation of the Richmond decision, defendants have waived the presence of counsel in nearly 60 percent of the cases, resulting in many of these attorneys wasting time sitting in the jail or courthouse waiting for a client to represent.

The problems with our court commissioner system predate Richmond and persist despite Richmond's added protections. Commissioners, as mentioned, are not judges and, indeed, most are not even lawyers, yet they are tasked with making important and sometimes difficult decisions about the legal elements of a criminal offense, the facts alleged to support the charges and the conditions of release. Further, commissioners undertake these critical steps in the space of only a few minutes, making life-altering decisions with little to no information about the defendant whose liberty they control.

Ironically, the real problem with the commissioner system is not what powers they have, but what powers they don't. In their limited role, commissioners do not engage in any kind of colloquy with prosecutors, defense lawyers or pretrial release personnel in an attempt to resolve the case. As a result, in virtually every offense ranging from a simple charge of disorderly conduct to a more serious felony, the defendant is cast into the vortex of the criminal justice system after appearing before a commissioner. It may be months, or sometimes years, before the case is ever resolved, leaving the defendant's life in limbo. Those who are not released or who do not make bail languish in jail while they await trial and inevitably forego education, employment and other opportunities while contributing to an enormous drain on limited judicial resources. And although defendants who are held have a right to later review by a judge of the commissioner's initial release determination, this is a duplicative step in the process.

There is a way to substantially reduce these inefficiencies: Eliminate, in its present form, the court commissioner system, which budgets $10 million for salaries alone, and require judges who have been appointed by the governor to handle initial appearances. Having defendants appear before a real judge in a real courtroom with a prosecutor, a defense lawyer and someone from pretrial services within 24 hours of arrest would go a long way toward reducing delay and the time spent resolving cases. Judges would be able to review the charging papers and consult with the attorneys and defendant to see if the case could be resolved immediately through a guilty plea or referral to diversion programs and much-needed services to assist the defendant and reduce the potential for re-arrest. Such early resolution would free up the courts and other personnel associated with the justice system to focus on the more serious cases. If the case cannot be resolved, the judge can detain the defendant or set reasonable conditions of release based on more detailed information about the defendant's background and the nature of the charges. A similar system currently exists in New York City, where many cases are decided at this initial stage because the people with the authority to resolve the case are all present.

Some details would need to be worked out to ensure, for example, that victims of domestic violence are still able to obtain protective orders against their abusers. There would also need to be systems established for pretrial services to more thoroughly investigate the defendant's background so it can make informed recommendations to the judge. But eliminating the commissioner system as it is presently constituted is one viable solution that will streamline the process, free up funds for services and programs designed to reduce recidivism and crime, and further Richmond's laudable goal of better protecting individual constitutional rights.

Gregg Bernstein is a partner at Zuckerman Spaeder LLP and a former Baltimore City state's attorney. His email is

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