Fee schedule, waiver floated as bail alternative

As legislators continue to wrestle with a Court of Appeals decision that the right to a lawyer applies when bail is first set, one state senator has proposed a system that would keep court commissioners in place and allow defendants to waive their right to counsel.

Sen. Robert A. ‘Bobby’ Zirkin, D-Baltimore County, said Friday he is proposing a plan that would restrict the commissioners’ discretion to set bail in most instances by imposing a fee schedule based on the charged offense and the suspect’s prior record. Many people would be eligible for immediate release.

Exceptions built into the system would mean some defendants would have to appear before a judge, where they could waive their right to be represented.

“Up-ending the entire judicial system and turning over what is essentially a decision made by judicial officers to some computer is not a good idea, and that’s putting it mildly,” Zirkin said, referring to an alternate plan that would create a risk assessment tool that would eliminate the need for court commissioners to set initial bail.

House Judiciary Chairman Joseph F. Vallario Jr. also has proposed keeping the court commissioners but limiting their discretion.

The two bills “are different but along the same philosophical lines,” said Zirkin.

Those philosophical lines are based on a mutual belief that the Court of Appeals erred in its September decision in DeWolfe v. Richmond.

Zirkin, Vallario and Senate President Thomas V. Mike Miller Jr. have all previously expressed opinions that the Court of Appeals got it wrong.

“The reality is that this system was broken by the Court of Appeals,” Zirkin said. “I don’t think you ever heard anyone down here screaming to change the commissioner system.”

In its September decision, the court did not suggest changing the commissioner system. However, it said that the risk of incarceration at the initial bail hearing triggers the right to have an attorney present.

The court has delayed implementation of that ruling until early June to see what action the legislature takes this session.

With the session set to close on April 7, Zirkin is floating his proposal to almost anyone who will listen.

On Friday, he presented it in a closed-door meeting of senators and delegates who make up a work group on the subject. Zirkin is a member of that work group.

On Thursday, he took his ideas to Gov. Martin O’Malley. The two met privately for about an hour on the issue.

Zirkin said he and the governor are not in agreement on the issue.

“We want to look at the entire pretrial system,” said Nina Smith, an O’Malley spokeswoman. “We’re looking at something that’s more of a longer-term fix.”

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