Judges seek to streamline Md.’s procedures for setting bail and ensuring all have attorneys

A Maryland Senate panel heard testimony Wednesday on a proposal by the state’s judiciary that would streamline the system for setting bail while also guaranteeing that all defendants, including the poor, have access to an attorney from the beginning of the judicial process.

But some members of the Judicial Proceedings Committee objected that while the Judiciary Task Force’s proposal would guarantee that all defendants would have an attorney at bail hearings, some defendants could still be confined in jail longer because a judge might not be immediately available to hear their case.

The proposal comes amid efforts to address concerns that too many people are unnecessarily kept in custody pending trial because they lack legal representation. Maryland courts have held that indigent defendants must have access to an attorney at the earliest proceedings when bail is set.

To address the legal and budgetary concerns, the General Assembly and the Judiciary set up task forces to explore all alternatives. These have included having judges and attorneys conduct all initial appearances around the clock or abolishing bail secured by money or bond for at least some offenses.

“There are problems with every single formulation that anybody has proposed,” Sen. Brian E. Frosh (D-Montgomery), chairman of the Judicial Proceedings Committee, said after Wednesday’s hearing. “Money is the biggest one in several. But there are political problems with others. But what [the judges] propose has a lot of benefits, but it has serious drawbacks as well.”

Under the current system, defendants have a right to appear before a judicial officer — usually a court commissioner — within 24 hours of their arrest. About half are released without having to post a bond. But some 80,000 defendants a year appear before both a District Court commissioner, who are on call at all times, and then a District Court judge for similar proceedings to review the criminal charges and possibly obtain bail.

Two recent court decisions in a case entitled DeWolfe v. Richmond have held that defendants are entitled to an attorney at both hearings, and those who are too poor to afford a private attorney are entitled to a public defender -- a right that the Office of the Public Defender estimates could cost taxpayers about $30 million a year. Others have suggested that the cost of additional staff, space and perhaps having a prosecutor on hand for the bail hearings could raise the costs significantly higher.

Chief Judge Ben C. Clyburn of the Maryland District Court told the Judicial Proceedings Committee Wednesday that the Judiciary Task Force’s proposal would replace the duplicative system beginning in January 2015. Instead of the current two-tiered system, District Court judges would handle nearly all initial bail hearings within 24 hours of a defendant’s arrest but on more limited hours than currently available with 278 commissioners in place.

The judges would preside over initial appearances for defendants arrested between 9 a.m. Sunday and noon Friday, in addition to conducting some initial appearances on weekends by video conferencing. The proposal would cost about $3.6 million to hire more judges and staff, in addition to other costs, but save money overall compared with assigning public defenders to attend duplicative hearings, according to Clyburn and a text of the proposal. The proposal would eliminate about 130,000 commissioner hearings. Commissioners would continue to hear cases on weekends and holidays and handle other duties.

“This is designed to get around the whole cost of the public defenders. By collapsing into one hearing, you don’t have to have public defenders at all of the initial appearances,” Clyburn said afterwards. “You get the same amount of due process before a judge. They would just have to wait until the next day.”

But Frosh expressed questions about fairness for defendants who landed in jail after the courts close and had to remain there overnight until the courts reopened the next morning. That same defendant, arrested on a weekend when a commissioner was available, could appear before a judicial officer almost immediately and perhaps be released, Frosh said.

“The guts of the DeWolfe decision is that we don’t want people held in jail unnecessarily,” Frosh said. “Here, they get a lawyer the first time they get to somebody who can release them. But they don’t necessarily get to somebody who could release them faster. In fact, we make it structurally more difficult.”

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