Court of Appeals makes a just decision

Our view: Requiring lawyers at bail hearings presents Maryland with some real practical difficulties, but it is the right (and economically sensible) thing to do

January 05, 2012

The Court of Appeals ruling this week calling for indigent defendants to be represented by lawyers at the court commissioner hearings that determine whether they'll be released before trial, granted bail or held in jail was an important step for justice in Maryland. These initial post-arrest proceedings can have profound effects on defendants — most of whom face relatively minor charges that will never go to trial — and on their families and communities. Ultimately, it will also be a good thing for taxpayers. Maryland spends tens of millions of dollars a year to lock up people who could have been released on their own recognizance or granted affordable bail, and paying for more public defenders will almost surely save money in the end.

But the immediate effect of this ruling is puzzling and points to an unwillingness on the part of the court to recognize the practical realities of its actions. Maryland's Office of the Public Defender is overtaxed as it is, and the court has just added potentially tens of thousands of new court commissioner appearances to its workload. Yet the majority of the court rejected any kind of reasonable transition period for the state to increase funding for the office and to hire additional attorneys to handle the task. And that's not the only obstacle; Baltimore's Central Booking and Intake Center, where the largest number of court commissioner hearings in the state occur, is not physically laid out to facilitate attorneys' participation at that stage in the proceedings, though officials there think they can make do for the time being. Across the state, hearings are held in jails, police stations and other locations that are generally not open to the public, and they take place 24 hours a day, seven days a week.

Still, there is no arguing with the Court of Appeals, and the public defender's office was working yesterday to figure out what it will need to staff the 180,000 annual hearings it now must contend with. The change will affect jail administrators, the Department of Public Safety and Correctional Services (which runs Central Booking), prosecutors and the commissioners themselves. They need to work quickly to come up with an estimate for what it will cost to handle the new task, and the governor needs to provide it to them, ideally in a supplement to the current budget, rather than as part of the spending plan that will take effect on July 1.

Although extra spending is not what the state needs right now, this particular investment should pay substantial dividends. It's expensive to keep people in jail, and the evidence clearly demonstrates that those who have lawyers are much more likely to be released or be granted a bail level they can afford. Douglas Colbert, a University of Maryland law professor, has studied the issue extensively and runs a clinic in which law students represent indigent clients in bail hearings in Baltimore. A decade ago, he published a paper demonstrating that defendants who have representation of counsel are 21/2 times more likely to be released on their own recognizance than those who don't, and those with lawyers are far more likely to have their bail reduced upon review.

It doesn't take much on the attorney's part — generally a brief interview with the defendant and a few phone calls to family, landlords and employers to verify his or her community ties. Defendants are frequently reluctant to provide that or any other information to court commissioners out of fear of the system or worry that it will somehow be used against them. But a short presentation by an attorney who has verified some basic information about a defendant can be persuasive. Mr. Colbert reported that the low-level offenders his students represented typically spent two days in jail, compared to nine days for those who didn't.

Statewide, public defenders wouldn't have to achieve anywhere near such stark results to make this shift in procedure worth it solely on economic grounds. The statewide budget for the public defender's office is about $84 million. Last year, the state spent $130 million to detain people waiting for trial — in Baltimore City alone. Ensuring representation in bail hearings is the right thing to do, and it's the economically sensible thing to do. Although the court showed a real insensitivity to the practical considerations of such a monumental shift for the state's criminal justice system, Maryland will ultimately be better for it.

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