Judges propose to streamline bail process

Maryland's judiciary is urging the General Assembly to streamline the state's system for setting or denying bail for criminal defendants, replacing the current two-step process with a single hearing before a judge most of the time.

A task force appointed by Court of Appeals Chief Judge Mary Ellen Barbera delivered its recommendations Monday to a panel set up by the legislature. The two study groups have taken significantly different approaches to how the state should respond to a Court of Appeals decision guaranteeing defendants legal representation at both steps in the bail review process — a ruling that could cost the state public defender's office alone about $30 million a year.


Chief Judge Ben C. Clyburn of the District Court of Maryland, who presented the judiciary's plan, said it could cut the bill by more than two-thirds. He said the proposal — which would eliminate bail hearings before court commissioners except on weekends — also sets the stage for other reforms.

Under the plan, judges would take over the job of conducting the initial bail hearing after an arrest during the workweek. Clyburn said the system would improve efficiency because judges have more extensive powers than commissioners to do such things as drop or reduce charges or order a defendant into substance abuse or mental health treatment.


"It offers more flexibility in the system, simply by having a judge available," he said.

Commissioners would continue to hold initial hearings on weekends and holidays, with defendants receiving legal representation as ordered by the state's highest court. They would still be entitled to see a judge if the commissioner did not free them.

During the week, commissioners would serve as a pretrial release unit for the courts and make recommendations to judges. Meanwhile, the state would study the feasibility of having judges conduct initial hearings on weekends by video-conferencing.

Paul B. DeWolfe Jr., the Maryland public defender, expressed disappointment that the judges didn't adopt the legislative task force proposal to eliminate cash bail entirely and base release decisions solely on the risk posed by the defendant. The judges said the idea needs more study.

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DeWolfe also said the plan to keep the commissioner hearings on weekends is flawed.

"That sets up a system in which people will be treated differently based on when they get arrested," he said. "If it ends up with more people being detained and people being detained longer prior to their hearing, that would not be a good system."

Clyburn said the judiciary's proposal would cost under $10 million, including $3.6 million to employ 12 more judges statewide and $1.9 million for the extensive video-conferencing technology the plan would require. He said the need to hire new public defenders would be dramatically reduced and that there would be less need to transport prisoners from jails to court.

Sen. Brian E. Frosh, chairman of the Judicial Proceedings Committee, had not seen the report but said the price tag would be "attractive" to lawmakers who have been struggling to find a way to comply with 2012's DeWolfe vs. Richmond decision without spending tens of millions more each year.


"It would certainly be worth considering," said Frosh, a Montgomery County Democrat. "It ought to be a judicial determination when somebody's liberty is at stake."

Spokeswoman Nina Smith said Gov. Martin O'Malley would have no immediate comment on the judiciary's proposal and is continuing to review options for complying with the Richmond decision.