For 15 years, legal advocates in Maryland have fought for a right they considered shamefully absent for poor people who get arrested: Getting a lawyer before they’re booked into jail.
Last month, Maryland’s highest court agreed with the advocates. But there’s a big problem, one that has grabbed the attention of the legal community statewide: Who will pay for it?
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“It’s a crisis,” said Sen. Brian E. Frosh (D-Montgomery), chairman of the senate’s Judicial Proceedings Committee. Frosh put the annual price tag in the tens of millions.
On Thursday, the Maryland Court of Appeals pushed back enforcement of its opinion until at least March 5 as officials scramble to find alternatives.
At issue are the complexities and long-standing problems of post-arrest procedures in Maryland. Arrestees are first brought before a “court commissioner,” officials who often work in the gritty, booking portions of county jails. The commissioners decide whether to release the arrestee pending trial, assign a bail amount that must be posted before he can be released, or — in the case of serious crimes — order the suspect held without bail.
Those held are then taken before a judge for a bail review, generally the next business day.
The court ruling would require a public defender to attend those initial hearings. But Frosh and others want to change state law to a solution they say would be far less expensive: requiring defense lawyers during the second stage, bail review.
That delay would still be too long for some advocates. But it would end what is widely seen as an untenable situation in 21 out of 24 Maryland jurisdictions, where, because of budget constraints, poor people don’t have representation at bail review hearings. As a result, even those held on minor charges can face stiff bonds that keep them locked up.
“When they’re not represented, they’re sort of at the mercy of the system,” said Paul DeWolfe, the chief public defender in Maryland.
Only three jurisdictions — Montgomery County, Harford County and Baltimore City — assign public defenders to the bail review hearings. DeWolfe said getting more funding to staff these hearings statewide “would be a great step forward.”
A University of Maryland law professor, Douglas Colbert, has spearheaded the battle over bail. Now gray-haired and 65 years old, Colbert grew up in Queens, and in high school was so inspired by the civil rights movement that he and friends rented a bus to go see Martin Luther King Jr. speak on the steps of the Lincoln Memorial in 1963.
Colbert went on to law school and spent 20 years defending people in poverty in New York City. In 1994, Maryland’s law school recruited him. Colbert established a legal clinic staffed by his students, and learned that poor people weren’t represented when their bail was set.
“I was stunned,” Colbert said. “The legal system just accepted it as the way things were done.”
Years of committee efforts and legal battles ensued. Colbert has always taken the position that low-income defendants deserve a lawyer from the outset. On Jan. 4, the Maryland Court of Appeals sided with him, ruling that public defenders must be present at the first hearings. But other members of the criminal justice system — jailers, prosecutors and the public defenders — immediately pointed out how expensive this could be.
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