Maryland appears on the verge of providing lawyers to all indigent criminal defendants during initial bail hearings, a potentially expensive response to rulings by the Court of Appeals that follows the collapse of bail-reform legislation in the General Assembly this year.
“For the thousands of indigent Marylanders who must try to defend themselves at an initial bail hearing without representation, light at the end of the tunnel has finally arrived,” lawyers Michael Schatzow and Mitchell Y. Mirviss of the Venable law firm, who are representing indigent defendants, wrote in a brief filed last week.
“For the first time in this 7½ year case, the [defendants] agree that they can and will comply with their constitutional obligation to provide counsel.”
Under the proposed plan, the state would contribute $10 million for providing public defenders or private attorneys for indigent criminal defendants who are making their first appearance before a judicial officer — usually a District Court commissioner — in Maryland’s two-tiered system. Counties would pick up the rest of the tab.
But the total cost is uncertain, and county coffers are hardly overflowing, raising concerns that counties and local jurisdictions such as Baltimore City could bear a heavy financial burden. Some estimates run as high as $55 million a year.
Sen. Brian E. Frosh (D-Montgomery), who led the unsuccessful General Assembly effort to streamline the bail-setting practices, warned that the new approach could end up costing the state a lot more money than the plan he unsuccessfully pushed in the legislature. That plan would have created an executive branch agency that would use sophisticated computer modeling to determine who should be released or held pending trial.
“We missed a huge opportunity,” said Frosh, who is running for attorney general in the June 24 Democratic primary. “It’s just a tragedy.”
The reform efforts followed appeals court rulings in DeWolfe v. Richmond that the state locks up too many people unnecessarily because those people lack lawyers when their bail is set. The court said all defendants have a right to legal counsel at their initial bail review; if the defendant needs a lawyer but cannot afford one, he would receive counsel from the public defender or a private court-appointed lawyer.
State officials and lawmakers were searching for alternatives because of the potentially high cost of supplying public defenders to defendants in initial proceedings. Currently, most defendants are on their own before a District Court commissioner. But the state provides public defenders for people who go before District Court judges for a second bail hearing.
The high court issued an injunction requiring the state to comply with previous rulings and begin providing legal counsel to low-income defendants. The injunction had been stayed until June 5 to allow the General Assembly to consider remedial action. A hearing is scheduled for Tuesday to review the status of the injunction.
An April 16 brief by Assistant Attorney General Julia Doyle Bernhardt argued that the injunction is no longer necessary because the state and the District Court are ready to comply with the court’s directives.
This year, the General Assembly vigorously debated bail reform during its recent legislative session but failed to arrive at a solution. Under the computer modeling scenario pushed by Frosh and other lawmakers, many more defendants probably would be released without posting bail because the computer would determine that they posed little threat to flee or commit new crimes. The initial bail hearing before a District Court commissioner would therefore be unnecessary.
But critics opposed the idea of allowing a computer and part of the executive branch to make decisions that have been made by judicial officers. Some lawmakers, led by Sen. Robert A. Zirkin (D-Baltimore County), pushed for a state constitutional amendment that would overturn the Court of Appeals decision requiring all defendants to have lawyers for their initial bail hearing.
In a letter to state District Court Chief Judge Benjamin C. Clyburn, the president of the Maryland Association of Counties expressed concern about the potential costs of providing all those lawyers. Association President Thomas G. Duncan wrote that the current plans to implement the court’s decision “could impose significant challenges and costs on county governments.”
The nonprofit, nonpartisan organization represents all 23 Maryland counties and Baltimore City.
“It’s certainly of interest to the counties and their pocketbooks what happens,” said Natasha Mehu, a policy analyst with the association.
Schatzow said the cost of implementing the high court’s rulings has been greatly overstated. He said that it is cheaper to pay a lawyer to represent someone at a brief bail hearing than it is to incarcerate the person overnight.
“In the long run, it’s probably not going to cost anything at all,” Schatzow said.