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Full Senate debates bail reform, with more to come

ANNAPOLIS – A legislative proposal to replace initial bail hearings with computerized pretrial risk assessment programs came under sharp attack Thursday by senators concerned that a law-and-order governor could ensure that all arrestees are jailed pending judicial review.

For example, a governor facing re-election could manipulate the risk assessment program to ensure that no one arrested for drunk driving is ever released on his or her own recognizance, said Sen. Joseph M. Getty, R-Carroll and Baltimore counties.

The governor could say “we need to crack down on this” particular offense, Getty added during Senate debate on the legislation. “We’re going to crack down hard on these defendants.”

Sen. Robert A. “Bobby” Zirkin, D-Baltimore County, said a judicial officer should make decisions regarding continued detention and not a computer program under the jurisdiction of the executive or any other “political” branch of government.

Acknowledging their concerns, Sen. Brian E. Frosh — the bill’s chief sponsor — said he will propose an amendment requiring that the computer programs be first approved by Maryland’s top court through its rulemaking process.

But before that or any other amendments could be considered, Getty successfully moved to have debate on the bill put off, or “special ordered,” until Friday.

Getty’s motion shut down the second day of debate on Senate Bill 973, which Frosh introduced in response to the Sept. 25 decision in DeWolfe v. Richmond, in which the Court of Appeals found a state constitutional right to counsel when bail is first set or denied by a judicial officer.

Frosh, who chairs the Senate Judicial Proceedings Committee, said that using the computer program would cost the state between $14 million and $16 million annually, or about half the $30 million cost of having attorneys on call at the 177,000 initial bail hearings held statewide each year.

The computer programs would calculate whether the person should be released or detained based on about 10 factors, including the severity of the crime charged and criminal history. Because the computer program would not exercise discretion, no right to counsel would apply at that stage.

People who are detained would have a bail review hearing before a judge, generally within 24 hours, at which time they would have the right to be represented by counsel.

Zirkin, opposing the bill, said computers lack the human ability of commissioners to consider external factors, such as the credibility of violent threats an arrestee might have made while being taken into custody.

For example, the program might conclude that someone arrested for a minor crime should be released pending trial due to a lack of criminal history. But the computer would not know that the arrestee had said, “I’m going to kill that person. I can’t wait to get out of here. They’ve got it coming,” Zirkin added.

Frosh responded that a similar computer program being used in Kentucky is more accurate than judges in predicting whether an arrestee will commit another offense or not show up for trial if released.

“The tool actually predicts outcomes better than the judges,” said Frosh, D-Montgomery. “The tool has greater predictive abilities than somebody’s gut instincts.”

But Zirkin told Frosh that “you are putting a lot of faith” in a computer program. “Doing this is significantly more dangerous than doing nothing,” Zirkin said.

Sen. Edward J. Kasemeyer said he, too, has little confidence in computer programs as compared to a human commissioner.

“How do you prevent a mishap?” said Kasemeyer, D-Howard and Baltimore counties.

Frosh responded that he could no more promise a foolproof computer system than he could guarantee commissioners would not make mistakes.

“We’ve got to change the way we do business,” Frosh said, citing the Richmond decision and its $30 million annual cost if the legislature does not act.

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 session ends April 7.

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