ANNAPOLIS — Measures advanced in both legislative chambers Tuesday that would repeal a Maryland law requiring that poor defendants have a public defender present when district court commissioners are setting their bail.
The Maryland Court of Appeals ruled earlier this year that, under the state Public Defenders Act, poor defendants must have an attorney at such bail proceedings unless they waive representation. If lawmakers don’t change the law, the Office of the Public Defender estimated it would cost about $28 million a year to comply with the court ruling. The cost could be equally high for prosecutors, who also would need to be present.
“The Court of Appeals decision by itself is a big-ticket item,” said Sen. Brian Frosh, D-Montgomery. “We’re saving tens of millions of dollars off of that ticket.”
A key component of the legislation would divert thousands of defendants from the court system by issuing citations to people charged with offenses that carry less than a 90-day jail term, so that they won’t have to go before a court commissioner. That means if someone was charged with simple possession of marijuana, for instance, that person would not go before a commissioner or judge. And that means the state wouldn’t have to pay for them to have a public defender.
“We save money by having fewer people in jail, fewer people cranking through that early stage of the process,” Frosh said.
Moving to citations in place of incarceration is a step in the right direction, said Doug Colbert, a professor at the University of Maryland’s Francis King Carey School of Law who has advocated for lawyers at bail for more than a decade. However, Colbert, who has worked with Baltimore’s Venable law firm in the court case, said he still opposed not requiring that defendants have legal counsel at the district court commissioner appearance.
The measures are S.B. 422 and H.B. 261.
The Senate bill has been changed to clarify that a defendant who is denied release by a commissioner would have to go before a district court judge either immediately or at the next session of the court, if court isn’t in session at the time.
The bill also clarifies that a defendant may not remain in custody more than 48 hours without being presented to a district court judge. The change was made to address conditions faced by defendants who are detained at the start of a weekend, or holiday weekend, when courts are closed.
“Otherwise you run the risk of people being locked up for four nights or five nights on a holiday weekend without having an attorney and without getting in front of a judge,” Frosh said.
The change means judges may have to work on weekends.
“In big jurisdictions, it means maybe a couple of times a year you’re going to work Saturday or work Sunday,” Frosh said. “In the smaller jurisdictions, what we expect and hope is that they’ll get retired judges — district court, circuit court judges — to step in for an hour or two.”
Frosh said lawmakers are moving quickly to get the legislation to Gov. Martin O’Malley’s desk before the court ruling takes effect in March. The Senate and House of Delegates are expected to take final votes on their respective bills later this week. Because the measures were filed as emergency legislation, the changes would take effect as soon as O’Malley signs them into law.
“We want to get it done and on the governor’s desk as fast as we possibly can,” Frosh said.