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Senate panel passes risk-assessment bail bill

ANNAPOLIS – A divided Senate panel on Tuesday approved legislation to replace initial bail hearings before Maryland District Court commissioners with objective pretrial release risk assessments, in response to the Maryland high court’s decision last year finding a state constitutional right to an attorney at those first appearances.

Sen. Brian E. Frosh, chairman of the Judicial Proceedings Committee, championed the proposal as a cost-effective and time-saving response to the Court of Appeals’ Sept. 25 decision in DeWolfe v. Richmond, which would otherwise cost the state $30 million a year to keep attorneys on call at initial hearings.

“We’re playing with dynamite if we don’t do something,” Frosh, D-Montgomery, said before the committee’s 7-4 vote in favor of his proposal. “This is the best of a series of imperfect options. This is the best that I can do.”

But Sen. Robert A. “Bobby” Zirkin, a committee member, assailed the proposal as “usurping” the judicial officer’s role by having a computer program decide whether someone should be released or detained pending a bail review hearing before judge.

Zirkin pledged to fight the measure when it gets to the Senate floor later this week. He said he will propose amending the Maryland Constitution to undo the court’s decision, thus lifting the requirement that attorneys be provided at initial bail hearings.

Maryland is about to take “a great leap into the unknown of criminal justice,” said Zirkin, D-Baltimore County. “We’re going to use a tool instead of a judicial officer” to decide if an arrestee should be released or detained, he said.

Prior to the vote on Frosh’s bill, the committee rejected an amendment by Zirkin to leave the initial bail-hearing system in place and enable people to waive their right to counsel if they want to have their hearings heard more expeditiously.

Under Frosh’s legislation, Senate Bill 973, Baltimore city and each county would use pretrial risk assessments to determine if the defendant qualifies for release, should be charged bail or be held pending trial. The programs would use an objective risk formula, used in other states, that considers such factors as the defendant’s prior criminal record and age to determine if he or she presents a threat to public safety or a flight risk and thus should not be released.

Pretrial release would not be available for those accused of violent crimes, including domestic violence, and sexual offenses. Arrestees who are held in custody will have a right to a review hearing before a judge, at which they will have the right to counsel.

Frosh’s proposal has the support of state’s attorneys and Maryland Public Defender Paul B. DeWolfe, who said that it would cost the state approximately $30 million to have attorneys on call around the clock at some 177,000 initial bail hearings each year. Frosh put the price tag of his legislation at $16 million.

The Court of Appeals has stayed enforcement of its Richmond decision until 4:30 p.m. June 5 to give the General Assembly a chance to enact legislation in response to the ruling. The General Assembly’s session ends April 7.

The court has scheduled oral arguments for May 6 on what enforcement order the judges should issue in light of the General Assembly’s action or inaction this session.

The deadline was not lost on committee members.

Zirkin called June 5 “the gun that’s pointing at our head right now.”

Said Sen. Jamin B. “Jamie” Raskin, D-Montgomery: “The clock is ticking here. We need to do something.”