ANNAPOLIS, Md. — In Maryland each year, thousands of defendants appear before court commissioners — not judges — who set their bail without an attorney present.
The state’s court system has drawn criticism from legislators, judges and advocates for the poor, nonviolent offenders. They say every defendant has the right to an attorney, even at the earliest stages of their case. Lawmakers are considering an overhaul of the system, and the state’s highest court is set to hear arguments on the issue next month.
Legal experts say the Maryland case could provide a blueprint on how to litigate for change in other states where legal counsel is not guaranteed during bail hearings.
Having a defense attorney at a bail hearing is crucial.
James Green, of Baltimore, was arrested for heroin distribution two years ago when police caught him with gel caps. He said a district court commissioner, a position that requires no law degree or previous law enforcement experience, quickly set his bail at $350. Green didn’t have a chance to tell his story and he couldn’t afford the bail.
“He didn’t give me a chance to say nothing,” Green said.
A judge reviewed his within a couple days but didn’t change it. He spent 16 days in jail before two University of Maryland law students helped him get another hearing.
They told the judge Green had recently finished courses at the Baltimore School of Massage and didn’t yet have a job. He lived in government housing. He could scarcely have afforded to leave town, even if he’d wanted to. After hearing about his background, the judge let Green out on his own recognizance.
Eventually, Green entered a treatment program, and the state’s attorney agreed not to prosecute.
Advocates for poor, nonviolent offenders say these kinds of cases are common: People such as Green sit behind bars because no one seriously examines whether or not they pose a risk of committing more crimes or missing future court hearings. And once the bail is set, it’s hard to change it.
The advocates say the system needs urgent attention. A study released last year by The Arnold Foundation found that when low-risk defendants spend two or three days in jail, they’re almost 40 percent more likely to commit new crimes before their trials, compared with people released in 24 hours. The report attributes this to defendants losing their jobs and housing after they miss a day of work.
Bail-setting practices vary widely between states and sometimes within states. Most have just one hearing, before a judge. But in Maryland and eight other states, the defendant stands before a court employee first, and a judge reviews the decision later, said Cherise Burdeen, executive director of The Pretrial Justice Institute. The organization is a Washington-based advocacy group for poor defendants.
In 2008, the U.S. Supreme Court ruled in a Texas case that defendants have a right to legal counsel at an initial bail hearing, but the narrow ruling left it to states to figure out, said David Carroll, director of the Sixth Amendment Center in Washington.
The Maryland case that wrestles with this question began in 2006. Several University of Maryland law students and their professor, Doug Colbert, recruited a group of Baltimore jail detainees to participate in a class-action lawsuit against Maryland’s court system. The case challenged the state’s practice of not providing a lawyer at every bail hearing.
Oral arguments are set for March 7 for what could be the final round of litigation. Depending on the outcome, it might influence other states across the country.
“There’s a real chance that states will look to that decision and sort of read the writing on the wall, and start working toward having their own defense attorneys at bail hearings as well,” Carroll said.
The Maryland case can’t advance to the Supreme Court because it now focuses on a state constitutional question, Colbert said. But if other lawsuits are heard in other states, they could potentially make their way to the Supreme Court.
Maryland officials are reluctant to staff early bail hearings with lawyers because it might cost $30 million yearly. On the other hand, lawyers say savings from detention costs would offset this increase. Then there’s cost to taxpayers. In Maryland, keeping someone in pretrial detention costs $60 to $160 a day.
Several Maryland legislators have proposed bills to change the bail-setting process. Some would move to a one-hearing process before a judge and eliminate the commissioners’ current role.
Others want to use a sophisticated formula, with factors such as a defendant’s prior convictions and the nature of the charges, to have a pretrial officer assess risk. However, the state would have to hire these pretrial officers because they don’t currently have them.
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