ANNAPOLIS — State senators on Wednesday sharply attacked part of the Maryland Judiciary’s proposal to streamline the process by which bail is set in Maryland District Court.
The judiciary’s plan, designed as a cost-saving way to comply with a decision that detainees have a right to counsel when bail is set, would entitle suspects to one bail hearing before a District Court judge during the work week, within 24 hours of being taken into custody.
District Court commissioners, who now conduct all initial bail hearings, would continue to do so only on weekends and holidays — when judges are not available — to be followed by a bail review hearing on the next court day, Maryland District Court Chief Judge Ben C. Clyburn told the Senate Judicial Proceedings Committee.
But Sen. Robert A. “Bobby” Zirkin assailed the proposal as violating the constitutional guarantee of equal protection by providing two bail hearings for people arrested on the weekend, but only one for those taken into custody during the work week.
“It doesn’t seem right to me,” said Zirkin, D-Baltimore County.
“We should have the same system for defendants regardless” of when they are arrested, added Zirkin. “How does that possibly pass constitutional muster? How is that not unequal protection of justice?”
Clyburn responded that the judiciary’s proposal does not violate a defendant’s right to equal protection because he or she can always appeal a bail determination, whether made by a commissioner or a judge.
Separately, Clyburn and Court of Appeals Chief Judge Mary Ellen Barbera defended their proposal in the House Appropriations Committee, which also heard testimony Wednesday (see related story, 1A).
The General Assembly is considering ways the state can comply with the Court of Appeals’ decision in DeWolfe v. Richmond. The 4-3 court, with Barbera dissenting, held that defendants have a due process right to counsel under the Maryland Constitution in any proceeding that may result in their incarceration, including an initial bail hearing.
Maryland Public Defender Paul B. DeWolfe, the titular petitioner in the case, said after the court’s ruling that it would cost the state $28 million to $30 million to have lawyers on call at the 177,000 bail hearings across the state annually. The judiciary estimates its proposal would cost $6 million.
But Sen. Lisa A. Gladden, the committee’s vice chair, wondered aloud why the judiciary did not propose having judges work at least two hours on the weekends, which could alleviate Zirkin’s stated concern about some defendants having “two bites” at bail while others receive just one.
“Why don’t judges get to work on weekends?” said Gladden, D-Baltimore city. “The public defenders do it.”
Gladden, a Baltimore public defender, said having the judges handle bail reviews on weekends would “really make life easier” for the judicial system.
“To get us where we need to go … everybody has to be on board to help us do this right,” she told Clyburn.
“We are on board,” but the cost of keeping the courthouses open on weekends was prohibitive, Clyburn responded.
“If there is really a demand [for judges on weekends], then we’ll revisit the issue,” he added.
Barbera, who introduced Clyburn to the Senate panel, echoed his concern about weekend court sessions.
“We want to be fiscally responsible,” she told the committee. “There are costs associated with it.”
But Sen. Brian E. Frosh, who chairs the committee, voiced concern that the plan would result in detainees needlessly being jailed overnight if they are arrested after court hours.
He suggested that courthouse hours might be extended during the week until 9 p.m.
“We don’t want to incarcerate people who don’t belong in jail,” said Frosh, D-Montgomery. “One way to prevent that is to have lawyers. Another way to prevent that is to have judges.”
Clyburn again pointed to the additional costs of keeping the lights on and the heating, ventilation and air conditioning systems operating at courthouses across the state, as well as transporting defendants to the courthouse.
Clyburn also voiced hope that the General Assembly would approve the addition of 12 district court judges to preside over bail hearings during the week.
Circuit court judges might also have to be assigned, or “cross designated,” to preside over bail hearings to accommodate the additional number being handled by judges, Clyburn told the committee.
The judiciary also proposed expediting bail hearings by holding more of them by videoconference so the defendant need not be transported to the courthouse.
Meanwhile, the Court of Appeals put the issue on hold on Jan. 14, when it will decide whether to block the next stage in the case.
In DeWolfe v. Richmond, the top court sent the case back to Baltimore City Circuit Judge Alfred Nance, who initially heard the matter, for further proceedings. Nance issued his order this month, citing the Court of Appeals’ decision.
The state has asked the Court of Appeals to vacate Nance’s order. On Thursday, the court will decide whether to hear the state’s petition.