Attorneys at bail hearings would unclog the court system

Counsel could prevent needless incarcerations

January 17, 1999|By Doug Colbert

IF A PROSECUTOR had reviewed Eric Jones' arrest on a four-year-old warrant for stealing a roast beef from a former employer, Jones would not have spent 21 days in jail. A prosecutor would have learned that the employer wanted only to fire Jones and would have realized that the one-year statute of limitations had passed. Instead, Jones was jailed because he couldn't post the $7,500 preset bail bond.

A prosecutor's review would have prevented Michael Dukes from spending 17 days in jail after he was arrested for riding the light rail without paying. His offense does not carry a jail sentence, but he was locked up after he couldn't pay a $95 fine.

The liberty of Jones and Dukes would have been protected if they had been represented by lawyers. But neither could afford private counsel, and the state does not provide lawyers for indigent people when they appear at bail hearings in Baltimore and in most Maryland counties. This might come as a surprise to many people. It certainly surprised me after I've spent 20 years practicing law and supervising law students in New York City, where lawyers are present at the crucial bail stage.

While public attention is focused on the most egregious examples of Baltimore's judicial morass, such as indefinitely postponed murder trials, a far more insidious problem occurs daily. Scores of people are being jailed at the bail stage because they don't have defense lawyers and because no prosecutor reviews arrests to determine whether charges should have been filed.

Jones and Dukes were fortunate to find students at the University of Maryland Law School who filed emergency habeas corpus petitions for them. Otherwise, they would have joined the about 2,000 people who are incarcerated in Baltimore daily on nonviolent, usually misdemeanor charges for at least 30 days before appearing in court. Most of these individuals remain in jail for one or two days -- not months -- when they have lawyers.

Also, with legal representation at their bail hearings, many would have avoided losing their full-time jobs and been able to continue providing for their families. Moreover, the public would not be left responsible for paying the exorbitant costs of pretrial detention.

In Baltimore, most judges conduct bail hearings quickly. The heavy docket prevents many of them from obtaining important background information about the accused. These individuals are not in the courtroom but remain in jail and appear on a video screen as the judge presides in a nearly empty courtroom.

Without defense lawyers on hand, judges know that their decisions won't likely be appealed. The results are predictable. For the unrepresented, judges usually rubber-stamp a bail commissioner's decision, even when the charges are relatively minor and the bail amount is clearly beyond the person's means.

While bail for most nonviolent offenses ranges from $2,500 to $5,000, some judges are notorious for setting bails ranging from $10,000 to $100,000 for such charges as driving with a suspended license, prostitution, disorderly conduct, petty theft, simple drug possession and failing to report to a probation officer.

Many judges also engage in the highly questionable practice of ordering a preset bail amount when an unrepresented person fails to appear in court, despite not knowing whether the absence was justified. When the accused individual is apprehended or voluntarily appears, another judge will probably defer to his colleague's preset bail order and refuse to consider a modification. Because District Court cases are regularly postponed for a month, the preset bail order becomes tantamount to imposing a minimal 30-day sentence on anyone who cannot afford to post the amount.

The bail policy places a heavy burden on the poor and working poor in the pretrial population. Generally, Baltimore's pre-trial jail population is about 3,500, and about half are incarcerated for approximately 45 days because they lack $500 or less to pay bail. Astonishingly, most will be released without ever being convicted of a crime.

There is much work to be done to fix Maryland's criminal justice system and to justify the often-heard claim that our nation is second to none in protecting individual freedom against unjust incarceration.

We must begin directing serious attention to the initial checkpoint when each of the 210,465 individuals charged with committing crimes last year entered the Maryland justice system. Because 91 percent of these mostly misdemeanor cases remained at the lower, District Court level and usually were dismissed or not prosecuted, we would be wise to devote additional resources so that public defenders and state's attorneys are present at the post-arrest and pretrial stages. Fortunately, the system's major players seem to recognize that the checks-and-balances system at the entry stage is in disrepair and requires immediate attention.

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