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Sen. Robert A. "Bobby" Zirkin
Sen. Robert A. "Bobby" Zirkin (The Daily Record/Bryan P. Sears)

Bail ruling spurs quest for constitutional amendment

ANNAPOLIS – Sen. Robert A. “Bobby” Zirkin on Wednesday introduced a constitutional amendment to undo the Maryland high court’s decision that people have the right to an attorney when bail is first set or denied.

Zirkin, D-Baltimore County, proposed the amendment after a Senate panel advanced a bill that would replace Maryland District Court commissioners, who now make the initial bail determination, with a pretrial “risk-assessment tool” that would take the decision out of the judicial branch’s hands.

The risk-assessment tool would use a set of objective criteria to determine if the suspect should be released after arrest or held in custody pending a bail review hearing before a judge, where he or she would have a right to an attorney.

Sen. Brian E. Frosh, the bill’s chief sponsor, called the measure 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 per year to keep attorneys on call at initial bail hearings. The full Senate could take up the legislation as soon as Thursday.

But Zirkin said the decision to hold or release a suspect after arrest should remain with a judicial officer, not be left to a computer program.

He also voiced deep concern that senators were leaning toward Frosh’s proposal not because it is right but because they want to enact a response to the Richmond decision before the legislative session ends on April 7.

“We can do better in our criminal justice system,” Zirkin told his colleagues, adding that they should take “a slow and sober look at our criminal justice system.”

Zirkin later said in an interview that it would be better for the General Assembly to pass no legislation than to enact a bill that replaces a commissioner, a judicial officer, with a computer program.

Zirkin’s proposed amendment passed an initial legislative hurdle with no votes to spare; the senator garnered the necessary 32 votes to have his amendment submitted to the Senate Judicial Proceedings Committee, which Frosh chairs.

Frosh, who voted against the amendment, was shy in discussing its chances of clearing the committee.

“We haven’t even had a hearing yet,” said Frosh, D-Montgomery, when asked when the committee would vote on the proposed amendment.

For the amendment to be ratified it would have to be approved by three-fifths of both the Senate and House of Delegates, and then by a majority of Maryland voters on Nov. 4.

Zirkin’s introduction of the amendment followed the Senate’s initial debate on Frosh’s proposal, which was cut short by a motion to lay over discussion of the bill until Thursday.

However, in those opening minutes, other senators also objected to the use of a computer program rather than a commissioner to decide initially whether an arrestee should be held or released.

Lawmakers should tread carefully before they “blow up the entire system” in order to rely on a computer program, said Sen. James Brochin, D-Baltimore County.

Sen. Richard F. Colburn, R-Eastern Shore, also cautioned against putting too much reliance on computer-based systems in light of the trouble the state has had with its program for registering residents for health care under the federal Affordable Care Act.

“We’ve seen these computer system rollouts,” Colburn said.

But Frosh defended the program as having “greater predictive ability” than commissioners in assessing the risk to public safety or of flight by releasing arrestees before trial.

Frosh’s proposal has the support of state’s attorneys and Maryland Public Defender Paul B. DeWolfe, the named petitioner in the Court of Appeals case.

Replacing initial bail hearings with the risk assessment would save the state the approximately $30 million it would cost to have attorneys on call around the clock at the 177,000 initial bail hearings held statewide annually, DeWolfe has said.

Frosh put the price tag of his legislation, Senate Bill 973, at $16 million annually, adding that his proposal is the best of the considered options.

“DeWolfe v. Richmond doesn’t give us another avenue,” Frosh said.

The Court of Appeals has stayed enforcement of Richmond until 4:30 p.m. June 5 to give the General Assembly a chance to enact legislation in response to the ruling.

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.