Incarceration without representation [Commentary]

"A poor man accused of a crime has no lobby," Robert F. Kennedy said 51 years ago, when, as U.S. Attorney General, he demanded legislation requiring counsel for federal criminal defendants. The legislation passed, much to Kennedy's credit, and, for the last half-century, counsel has been present at federal bail hearings.

But not in Maryland. No Bobby Kennedy has taken leadership to fix our broken criminal justice system. And there is no lobby to oppose the vested economic interests (bail bondsmen and some criminal defense lawyers) who benefit from the status quo.


So, 51 years later, we have a system where thousands of poor individuals — mostly minorities — spend days, weeks or months in jail, accused of minor crimes and assessed bail they cannot afford, until they pay a bail bondsman's non-refundable fee, plead guilty, or have their charges dropped. State and local governments pay a steep price (incarceration is expensive), as do the accused defendants, who lose their freedom and may lose their jobs, housing, or even custody of their children because they cannot afford bail.

Many of these individuals are arrested for low-level, non-violent offenses that do not require detention. In 2012, the General Assembly found that "[m]any defendants cannot afford bail set at even a low amount of $100 and some wait in jail for weeks before a court appearance for misdemeanor crimes." The system has "a severely disproportionate racial impact and major social costs[.]" On one recent random day in the Baltimore City jail, 62 people were detained because they couldn't pay bail of $1,000 or less. They had been charged with offenses like trespassing, theft, driving on a suspended license, prostitution, failure to pay child support, minor drug charges and probation violations.


None of those people needed to be locked up for weeks pending trial. They were detained simply because they were poor and couldn't afford the assessed bail.

Consider the 18-year-old student charged with second-degree assault due to an alleged slight shove of his mother during an argument, who was incarcerated for 22 days because his family could not afford $250 bail. Or the Johns Hopkins graduate student picked up for a DUI and held for three days after being assessed a $10,000 bail, despite no criminal record, because the commissioner did not believe his story.

Compare this to New York City. This month, the New York Times reported that the average time for a criminal arraignment hearing with counsel present had dropped to 22 hours. Maryland does not come close to that mark.

In September 2013, Maryland's highest court said enough is enough and held in the landmark "Richmond" decision that indigent arrestees have a constitutional right to counsel when judicial officers decide freedom, jail or bail. The General Assembly is now debating ways to implement or to frustrate that decision.

Opponents of reform point to cost estimates of $30 million. That number is false: it is based on bail hearings taking an average of 2.8 hours each, even though bail hearings in fact take only a few minutes to complete. This cost estimate is no more real than the Iraqi WMDs, yet this big lie is treated like an unshakable truth.

One proposal, Senate Bill 973, is inexpensive, progressive and assures the right to counsel: It would mandate pretrial assessments to determine which arrestees can be released immediately and which should be held to see a judge (with counsel) within 24 hours. As counsel already is provided at bail reviews, this is the least costly way to implement Richmond. It has the support of prosecutors, jail officials, counties, and reform advocates, which says a lot.

But supporters of the status quo are adamantly opposed and have introduced proposals that would take away rights and increase incarceration (and thus raise costs). One proposal would make arrestees choose between an early bail hearing or waiting day(s) for counsel. The Attorney General's office says that imposing this cruel choice on arrestees is unconstitutional. Another unconstitutional proposal would impose a rigid bail schedule based solely on the charges and not examining the arrestee's ability to pay or ties to the community. Worst of all, opponents now seek to amend the State Constitution to strip poor defendants (but no one else) of their due process right to counsel before incarceration, a patent violation of equal protection under the U.S. Constitution.

Maryland law entitles criminal defendants to release pending trial unless they are a flight risk or a risk to the community, but Maryland's system fails to protect that right. Instead of trying to eliminate rights through inflated cost estimates, legislators should decide, once and for all, to fix the system and provide attorneys to end the needless incarceration of thousands of poor individuals.


Michael Schatzow and Mitchell Y. Mirviss are lawyers at Venable LLP who represent the plaintiffs in the Richmond right to counsel case. Their emails are and

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