The Maryland Office of the Public Defender has been providing representation since June to all defendants seeking counsel in their bail review hearings. But a Justice Policy Institute report released last month on the bail system in Baltimore found the money-bail system itself discriminates against lower income defendants.
The Court of Appeals ruled in January that legal representation must be provided to defendants for their initial bail commissioner hearing, but the General Assembly changed the public defender statute so the state would not have to increase funding to public defenders for indigent clients.
Bail review hearings are done by a judge who can alter initial bail decisions made by non-lawyer bail commissioners.
Requiring representation for commissioner hearings, as the Court of Appeals held, would have required the state to provide counsel for the nearly 75,000 commissioner hearings every year. The public defender office would have had to triple in size, said Jerome LaCorte, chief attorney in the Office of the Public Defender.
LaCorte said although he is not sure if there will be any response by the judiciary to the Justice Policy Institute report, changes to bail representation are happening independently of the report.
It is not new for public defenders to be present for bail reviews, but a change in the policy now has more than just the office’s newest attorneys dealing with bail matters. Every attorney in the public defender’s office will have to do bail reviews and reviews are now held six days a week, from Sunday to Friday.
“Every unit from the juvenile to the district court to the circuit court, everybody in the public defender’s office, will have to do a bail review,” said Sen. Lisa Gladden, vice-chair of the Judicial Proceedings Committee and a public defender herself. “That’s very different from what we have been accustomed to doing.”
According the Justice Policy Institute report, 57 percent of the people in the Baltimore city jail were detained because they were not offered bail or any terms of release. Many who are offered bail can’t easily afford to pay it and the financial impact effects innocent family members.
“In most cases, the bail commissioner has the authority to release people on their own recognizance, but in Baltimore City, this rarely occurs,” the report said. “In fact, most people in Baltimore City are not offered release under any conditions.”
Defendants who are not offered bail or can’t afford to pay bail must wait until their court date for any possibility of release. Often, that can be months away. Whether the defendant is innocent or guilty, a prolonged stay in jail will likely cost them their employment.
“They aren’t criminals; they are people who have been charged with crimes,” Gladden said. “I can charge you for murder tomorrow. You are charged with it and that is the thing about bail. It is associated with charges, not convictions. Before we focus on institutional errors, we need to focus on fairness, because a lot of this is just unfair.”
Although defendants and their families can go to a bail bondsman, the use of bonding companies is not made easy. By law, bonding companies are supposed to charge a 10 percent premium.
“We still do that, we have for-profit business which is making money off of people whose family members have been incarcerated,” LaCorte said. “It’s sort of an antiquated system.”
Other conditions of pretrial release don’t rely on financial terms. In Washington, D.C., more people are released on their own recognizance after being questioned by the Pretrial Services Agency. Based on a 38-point risk assessment, the agency determines the defendant’s flight risk and danger to society.
Gladden said she supports creating a new bail system in Maryland and would like to see it modeled after the D.C. system. However, when she tried to do it 10 years ago, she couldn’t get a bill out of committee.
Gladden said the problem lies in the fact there are too few criminal lawyers in the General Assembly that understand the ramifications of the current bail system.
“Which legislator is going to say, except us public defender legislators, maybe we shouldn’t have bail, we should let people go?” she said. “Most people are not going to be able to justify cutting people lose.”
In addition, the bail bondsmen “have a very powerful lobby in the state legislature,” LaCorte said. “It’s a very powerful financial interest because these people make a lot of money on it.”