The recent discussions over the Court of Appeals mandate for attorneys at bail reviews have focused on an interesting issue, the right of the Maryland legislature to delineate funds in the Maryland Judiciary’s budget to pay for bail reviews. Interesting, but off the mark.
The real question here (and one many legislators seem to be ignoring) is the need or lack of need for counsel and (according to some legislators) judicial officers at bail reviews. Any practitioner who has been to bail reviews can tell you most assuredly that having judges and attorneys at bail reviews matters.
It mattered in a case in which counsel was retained where, after the representative of the state detailed the defendant’s priors, the judge “acknowledged” defense counsel’s presence but then said he was going to deny a reduction in bail. Only after counsel spoke up and explained the familial and treatment support the defendant had waiting did the judge finally relent and reduce the bail for what was a non-violent, drug-related offense. Lawyers can make a difference.
And yes, it mattered in another case where a youthful offender with familial support was denied release based on the seriousness of the charge (because sometimes a “simple” assault is not so “simple”). Judges, too, can make a difference.
Looking beyond the reflexive response that people in jail are criminals, so why should law-abiding citizens care, you find a lot of decent people who wind up in bail reviews after really bad days (or nights), people who are barely coherent when addressed and people who lack the educational background to make a cogent argument about why they should not be kept in jail for weeks or months pending trial. Here again, lawyers make a difference.
Interestingly missing in virtually all that has been written about this issue is how much the state may save if more defendants are released into the community with appropriate supervision and treatment (especially for drug-related offenders). Getting those individuals away from being warehoused in costly jail cells and into treatment before trial could be a real boon to both the court system and the communities they live in, all the while saving the local jurisdictions and the state money. It may not be as catchy a campaign phrase as “lock ’em all up and throw away the key,” but it is a whole lot more realistic approach.
The legislature has and should continue to focus on the cost as well as the need for attorneys and judges at bail reviews. Our legislators are a talented group with good support staffs and leadership. Let’s just hope that as they continue to work on this problem, they come to even more fully appreciate how large a difference lawyers can make in ensuring that the right defendants are released (and yes, the “right” ones are kept in jail) pending trial.
Robert L. Frank
The writer is an attorney in Reisterstown.