For want of a lawyer, many do time 60% of defendants spend weeks in jail, but never go to trial

April 07, 1996|By Douglas L. Colbert

Consider yourself lucky: Chances are you'll never have direct contact with the criminal justice system.

Aside from watching the occasional celebrity trial or "NYPD Blue," most of us learn how the system operates from what we see in the news. So in late February, when The Sun's Michael Olesker described Afro-American newspaper publisher John Oliver's maddening experience of spending 8 1/2 hours in a filthy and frightening jail cell because he failed to pay a $25 traffic fine, we were quite shocked.

Mr. Oliver's episode gave us a brief glimpse into what happens when you're caught in the web of the criminal justice system and temporarily denied your most precious right -- freedom. His experience was unusual because affluent people are not frequently arrested and jailed.

Yet, in many ways it was also routine.

Like the criminal defendant who typically is poor or working poor, Mr. Oliver had no lawyer when he appeared before a bail commissioner. Being educated and articulate, Mr. Oliver persuaded the commissioner to set him free.

Others are not so persuasive, although, like Mr. Oliver, most aren't charged with violent crimes and the bail statute favors pretrial release.

When unable to post bail for alleged offenses in the city, the accused can remain in jail for weeks, and sometimes longer, without legal counsel. Incarcerated indigents usually meet their court-appointed lawyer for the first time at their next court appearance, one month later.

And, despite what you might believe about your constitutional rights, the right to a lawyer shortly after arrest applies only in federal prosecutions and in some other states' courts -- but not everywhere in Maryland's court system.

When the accused appears without a lawyer, the results are predictable: Judges frequently set and maintain bail that can't be posted. In turn, more people are added to the full-to-bursting pretrial prison population.

The District Court in Baltimore, like lower courts elsewhere, usually hears less serious offenses. Cases like Mr. Oliver's are most common, along with other misdemeanor charges such as petty thefts, property destruction, simple drug possession, and offenses like disorderly conduct and resisting arrest that often result from police-citizen encounters.

Surprisingly, the majority of these charges never result in conviction, although people spend considerable time in jail before being released. A recent Baltimore City study revealed that nearly 60 percent of defendants' cases were either dismissed or not prosecuted after the defendant spent 47 days in jail.

When viewed from this perspective, Mr. Oliver was fortunate in getting out of jail after only 8 hours.

The economic and social costs of detaining the pretrial prison population are substantial. In 1995, taxpayers paid about $20 million for incarcerating people in Baltimore who had not been convicted of any crime but who remained in jail because they were too poor to post bail.

Some defendants, of course, were charged with serious crimes that required high bail, while others were poor risks for release from jail. But many were among the three of five whose cases were ultimately dismissed and who spent nearly seven weeks in custody.

A careful review of the relevant data would determine that significant savings could be gained from eliminating pretrial detention on charges that are too weak to prosecute. Add in the social costs that result from incarceration -- many people lose jobs, benefits and homes while in jail -- and you have a devastating equation.

There's a simple way out of this: Guarantee that incarcerated prisoners are represented by counsel at the bail proceeding and thereafter. This will ensure that many will return to their families and livelihoods much sooner while their not-so-serious charges remain pending.

Those facing criminal charges without a lawyer's assistance during the first 30 days suffer grave losses of freedom rights. Without benefit of counsel, the opportunity to defend is virtually lost.

Important witnesses go uninterviewed and are frequently unavailable thereafter. The state's evidence cannot be reviewed a timely manner, leaving the accused little reason to hope for a chance to contest the charge at trial.

The accused loses confidence in the attorney's ability to establish a defense. The right to a trial becomes illusory. Plea bargaining looks like the only option.

You might think that Baltimore's new nationally publicized, high-tech Central Booking and Intake Center would virtually eliminate the possibility of behind-bars bottlenecking. Sorry to say, it's not happening.

While this streamlined system is cost efficient, it continues to deny poor people legal representation when the judge makes a critical decision -- whether to allow the accused to return home, or to keep him or her in jail for weeks or months while awaiting trial.

Moreover, Baltimore's "model" system makes it even more unlikely that accused indigents will regain their freedom until the case is concluded.

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