A more just solution

Free lawyers at bail reviews, not commissioner hearings, would be more helpful and less costly

January 10, 2012|By Page Croyder

In my years in criminal justice, I have seen many millions of taxpayer dollars wasted on wrong-headed "fixes" to problems. Now we can add free lawyers at commissioner hearings as the latest financial folly, following a Court of Appeals ruling last week. Fortunately, our legislators can stop it.

Maryland uses a two-step process after an arrest. First, a defendant is taken before a commissioner. Commissioners set a trial date and determine whether to release the defendant pending trial. If they don't release a defendant outright, they set a bail. Defendants who can't post the bail are then taken before a judge, who will review the commissioner's decision. This second step is called the bail review.

Right now, with no lawyers present, nearly half those arrested statewide are released by commissioners on their promise to come to court. Under the new ruling, taxpayers will pay lawyers to interview 100 percent of defendants when almost 50 percent would have been released anyway.

Commissioner hearings occur at all hours, since they must happen within 24 hours of arrest. Therefore, taxpayers will now pay for lawyers to be standing by 24 hours a day, 365 days a year, at every detention center in the state, even during dead times when few if any hearings are held.

But the costs won't end there. Most, if not all, detention facilities lack the space needed to accommodate new, 24-hour staff and the private space arrestees will need with their lawyers. So counties and cities will need new construction money.

And there's the significant burden on efficiency. When Baltimore's Central Booking and Intake Center opened in 1996, it tried to do what the free lawyers would do now. It assigned pre-trial release agents to interview defendants prior to commissioner hearings and verify their home and employment information. This process proved so time-consuming that commissioners missed their 24-hour deadlines, and the booking center backed up with defendants.

One other irony should not go unnoticed: While the poor will get free lawyers, the nonpoor won't get any representation. Private lawyers just don't come to commissioner hearings at 8 p.m., 2 a.m., or even 9 a.m.

The job of these free lawyers will be, as a Sun editorial pointed out, to make "a few phone calls" to verify facts about their clients, something that doesn't require legal training. And it's very hard to verify information within a short window of time and at night.

Here's what will happen: Lawyers will report what their clients tell them as facts, and leave out any unfavorable information. If they provide wrong information, as a lawyer did last month to get an accused murderer out of jail, there will be no accountability at the unrecorded commissioner hearings. They will also try to dazzle or bully commissioners (who are not lawyers) with irrelevant legal arguments. Conscientious prosecutors will want funding for their own 24-hour staffing to guard against that. Stalemate. And a colossal waste of money.

The Sun argues that the savings in jail costs makes free lawyers "economically feasible." Experience in Baltimore City has already proved this wrong.

I share the concerns that prompted the lawsuit. The bail system discriminates against the poor and extorts bail fees from defendants and their families. But adding lawyers won't solve that problem.

The Court of Appeals did not invent a new constitutional right to lawyers at commissioner hearings. It gave a new interpretation to an old law, the Public Defender Act. Legislators can easily amend this law and return to the way it was interpreted for decades.

But it also can create a right to free lawyers at bail reviews. That would be fair to everyone: defendants, because the public defender will represent everyone who can't make bail; prosecutors and victims, because they can attend the open hearings. It won't clog up the system, and won't cost anything since the courtrooms, judges, prosecutors and public defenders are already available.

But the General Assembly shouldn't stop with amending the Public Defender Act. It's the practice of bail itself that's seriously flawed, and it won't be fixed by lawyers arguing whether a bail should be higher or lower. We need a whole new mindset regarding release before trial. In fact, I fear that adding defense lawyers to bail hearings will abort the drive to reform bail itself.

Baltimore City is currently studying its bail practices. Each county should be asked to do the same. We can find a real solution to the real problem. And for once, it won't cost a thing.

Page Croyder spent two decades with the Baltimore State's Attorney's Office before retiring in 2008. She blogs about local criminal justice issues at http://pagecroyder.blogspot.com/.

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