December 2, 2013

UNLIKE IN almost every other state, people who are arrested in Maryland do not appear initially before a judge. Instead, they are hauled before a court commissioner, often not even with a lawyer, who decides whether to throw them in jail or release them, with or without setting a bond.

The process, established to buffer judges against a deluge of arrests in Baltimore, is quick, thanks largely to the absence of lawyers. It is also unconstitutional, according to Maryland’s Court of Appeals. In deciding that defendants are entitled to a lawyer if their liberty is at stake, the state's top court has upended Maryland’s pretrial criminal procedures. In the process, it may also have opened the door to a better system.

The immediate concern is that the decision may cost the state tens of millions of dollars annually. Providing state-funded lawyers at every bond hearing — even for suspects charged with minor crimes and released on their own recognizance, who make up almost half of all defendants — would require some 240 additional public defenders, at an estimated price of $30 million a year. Prosecutors say they, too would have to start staffing the hearings. Over a decade, the bill to Maryland taxpayers could top $500 million, according to one prosecutor.

That got the attention of anxious lawmakers in Annapolis, who appointed a task force to find a fix. The options before the task force include scrapping the entire practice of posting bond.

The bail bond system is meant to ensure that defendants appear at trial and court hearings by imposing a financial penalty on them should they not. Critics, including plenty of prosecutors, say it’s an antiquated tool that sometimes allows more affluent or better-connected defendants to avoid pretrial incarceration while poorer people facing the same charges languish in jail.

A handful of states have moved away from money bail, and the District has eliminated it. They reason that bondsmen, motivated by profit, should not play a critical role in determining which defendants pose a danger to society. The District’s success in compelling defendants to appear for court dates suggests that bail may not be necessary.

One alternative is to release or detain defendants according to assessments of the danger they pose and their likelihood of flight. Criteria would include seriousness of charges, prior convictions, drug use and previous compliance with court orders. A pretrial service agency can monitor defendants by means as aggressive as ankle bracelets or as relaxed as automated phone calls reminding them to appear in court. Montgomery County has had such a system for years; as a result, many in the criminal justice system there see the bond system as a superfluous moneymaker for bondsmen.

The bail bond industry has powerful allies in Annapolis, where many lawmakers are trial lawyers. Eliminating the system wholesale may not be politically possible, at least for now. But the idea should get fair consideration. Even if the state is compelled to hire scores of public defenders to ensure defendants’ constitutional rights, it can also make the system fairer and more sensible by providing non-monetary means of encouraging defendants to appear in court.