Making bail

The case that led the Court of Appeals to conclude that indigent defendants arrested in Maryland should have the right to counsel when they appear before a district court commissioner put the state Office of the Public Defender in an awkward position. On principle, it agreed; the initial phase of the criminal justice process is crucial to determining the liberty of a person who is arrested, and without the benefit of counsel, far more people than necessary wound up confined to jail while awaiting trial because of excessive bail requirements. But as a logistical matter, the office felt very differently. The agency is already overburdened and underfunded, and the court, with little regard for the practicalities, insisted that public defenders start staffing court commissioner hearings in every jurisdiction in the state, 24/7, starting almost immediately.

Both chambers of the General Assembly are due to vote this week on legislation that would untie that knot. Because the court made its decision based on an interpretation of the public defender statute, not the state or federal constitution, it is within the legislature's power to overturn it. To its credit, the legislature is not completely throwing out the concept of requiring additional legal representation in the early stages of criminal proceedings. Instead, it is pursuing what is unquestionably a more practical way of achieving it. Whether lawmakers' solution also serves the cause of justice remains to be seen.

Maryland has a two-step process for determining whether and under what conditions someone who is arrested should be held before trial. In the first phase, the defendant is brought before a court commissioner, who is typically not a lawyer. At those meetings, which can take place at any time, day or night, defendants are advised of the charges against them, informed of their rights and evaluated for pretrial release. In nearly half of cases, defendants are released on their own recognizance; in other cases, district court commissioners may assign bail. Those who are not released or don't post bail then have a right to appear before a judge for a review of the commissioner's decision. Those hearings typically take place during the next court session.

Because indigent defendants have not previously had access to counsel at those stages in the process, too often they have been held unnecessarily or assigned unaffordable bail. The work of law students in Baltimore has shown that the presence of an attorney results in far fewer defendants spending time in jail for minor offenses, which not only benefits those accused of minor crimes but also saves the taxpayers the significant cost of incarcerating them.

Nonetheless, the public defenders have said they cannot provide representation at commissioner hearings without a major new infusion of state funding. Some prosecutors have said that if defendants are going to have lawyers at that stage, they will want to staff commissioner hearings as well. Public safety agencies have claimed that they, too, will incur massive costs to comply with the court's order. Whether all those costs are really necessary is unclear, but the specter of them has certainly been enough to prompt action by the legislature, which is already grappling with a $1 billion budget shortfall.

The House and Senate are proposing substantially similar remedies. Both would eliminate the right to a lawyer at the commissioner hearing but would codify the requirement at the bail review. And both chambers are also considering requirements that police issue citations instead of sending suspects through the commissioner/bail review process for certain minor offenses when doing so would not risk public safety.

Of the two approaches, the Senate's is superior in that it requires that a bail review hearing take place within 48 hours of the court commissioner's decision. That has drawn significant opposition from district court judges, who would as a consequence be required to hold bail review hearings on the weekends. But if we are to deny suspects the right to counsel at the first instance when their freedom is at stake, it is imperative that such an injustice be corrected as soon as possible. Even 48 hours is too long for someone to be kept in jail unnecessarily. District courts ought to be able to arrange their schedules to provide sufficient staffing on weekends.

Above all, legislators need to be cognizant of the fact that they are taking away what the Court of Appeals identified as an important right for criminal defendants. Both the House and Senate legislation would create a task force to study the adequacy of representation for indigent defendants. The General Assembly needs to make sure its report doesn't gather dust on a shelf. The current system results in a class-based pretrial population — those with means get out, and those without are punished by the criminal process regardless of their guilt or the severity of their offenses. If the legislature's remedy does not substantially level the playing field, it will need to take this issue up again.

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