May 09, 2005|By Doug Colbert
MY LAW STUDENTS often witnessed the sorry sight of humanity huddled around an open toilet inside a small holding cell in the Central Booking and Intake Center. Meant to hold five people, 15 or more stood or found scarce floor space during the typical two-day wait before seeing a court commissioner.
"We must take everyone the police arrest," said our escort officer explaining the overcrowding.
The public defender deserves much credit for exposing the practice of incarcerating people far beyond the lawful 24-hour period and leaving them to contend with inhumane jail conditions. Many were charged with minor crimes.
Two issues stand out when it comes to trying to eliminate delay and promote fairness in the justice system. First, the prosecutor, not the police, must make the early charging decision to avoid holding prisoners for more than 24 hours. Second, court commissioners need more information and must conduct hearings in a public, non-jail setting.
In Baltimore and elsewhere in Maryland, police officers make the initial call when it comes to charging a crime. They often file questionable charges, such as loitering and nuisance crimes, that are not supported by sufficient evidence. City prosecutors ultimately refuse to prosecute 30 percent of these filed charges. But review of the cases takes days, during which people remain in jail and formally enter the state's criminal data system.
Why delay prosecutorial review for so long? Why wait until people acquire a criminal record and are exposed to unhealthy and unsafe conditions?
The police desperately want to hold on to charging power. They make a powerful statement on the street when they arrest and effectively impose two- to three-day jail "sentences" even when no prosecution results. But police charging is contrary to recognized practice.
Nationally, local prosecutors assert their role as legal officers. They decide what charges deserve prosecution. In other cities and states, prosecutors interview the officer within hours after arrest. In the "complaint room," prosecutors identify whom they intend to prosecute. They educate officers about what is needed for "good" arrests.
Early prosecutorial decisions free the wrongfully arrested and promote less crowded jails. People who not charged and released are then spared the consequences of an arrest appearing on their record. Arrests stigmatize and jeopardize future employability.
Let's get it right the first time. Eliminate police charging. Let prosecutors decide whether an arrest is worthy of prosecution.
On a similar theme, Maryland's unique judicial procedures are inefficient and injudicious. Before seeing a judge, detainees appear before a court commissioner. Commissioners are the crucial players in the state pretrial release system. Though hidden from public view, they make the initial decision to free someone or require bail. Most reviewing judges maintain the bail amount.
Because of the high stakes, one expects commissioner proceedings to include procedural safeguards. Not so. Maryland indigents never have a lawyer at such hearings. Nor do they see their accuser or the prosecutor.
Most astonishing, commissioner hearings are often conducted inside jail. Baltimore City's are closed to the public. Not even an accused's private lawyer or immediate family may attend. What happens there? No one knows for certain. Commissioner proceedings are never recorded or transcribed.
Law students who observed commissioner hearings were alarmed that commissioners made decisions without basic information. None received an investigation report and never knew whether someone had a job or family and community ties.
Students also were disturbed hearing about the intense pressure commissioners occasionally faced from police, prosecutors and bondsmen. Remembering a colleague who was summarily fired after police protested his decision to release a young mother, they referred to a learned first principle: setting bail rarely provokes public reaction, but release may be costly.
Enforcing the 24-hour rule is an important step to ensure efficiency and fairness in the justice system. But until commissioners hear from defenders and pretrial investigators and prosecutors serve as the system's gatekeeper, Maryland should not expect a change in the quality of justice administered.
Doug Colbert teaches at the University of Maryland School of Law.
