MSBA slams a bail bill

ANNAPOLIS — The Maryland State Bar Association will oppose a proposed amendment to the state constitution intended to overturn the Court of Appeals’ landmark decision requiring attorneys at the initial bail determination.

“This amendment doesn’t really accomplish anything,” said Richard A. Montgomery III, the MSBA‘s director of legislative affairs. “In fact, it creates new problems even if read with the most charitable interpretation.”

Montgomery said Monday that the draft of Senate Bill 1114 has a number of problems, including a reference to the wrong section of the Maryland Constitution.

In DeWolfe v. Richmond, the Court of Appeals found the right to counsel was guaranteed by Article 24 of the state constitution.

However, a bar association review of the bill found that the proposed law is drafted to amend Article 21, Montgomery said.

Additionally, Montgomery said the bill “is taking aim at language that is in the court decision and not the plain language of Article 24.”

“This would pose a very technical legal proposition to lay voters,” Montgomery said. “You’ve seen how much difficulty the General Assembly has had in wrestling with this issue. Referendum questions do not come with fiscal notes.”

Sen. Robert A. “Bobby” Zirkin, D-Baltimore County sponsor of the bill, disagreed and said he has drafted amendments that will clarify the bill.

“It’s all drafting problems,” Zirkin said. “It’s not that complicated to know what it is that we’re trying to do.”

Zirkin said the intent is to overturn the court decision and allow the legislature the time it needs to look at the issue.

But other legislators, including Sen. Brian E. Frosh, D-Montgomery, say that the court’s temporary stay of its own decision is the only opportunity they’ll get to address the problem.

The cost of hiring public defenders and moving the District Court system to 24-7 operations could cost as much as $50 million, according to Frosh, chairman of the Senate Judicial Proceedings Committee.

Frosh is the sponsor of SB 973, a bill that would institute a computerized risk assessment tool administered by a pretrial agency inside the government’s executive branch of government. He estimates the cost of that program would be about $16 million annually.

If it were to become law, the Court of Appeals would have to approve the risk assessment tool through its rule-making process.

Zirkin and others oppose the plan, citing concerns about accountability and reliability.

Zirkin said his amendment would allow the General Assembly to “take a slow and sober look at the problem” before instituting sweeping changes. He said amendments he has drafted in advance of Tuesday’s hearing will fix the issues identified by the bar association.

Montgomery disagreed, saying the proposed amendment could prevent the Office of the Public Defender from representing indigent defendants before court commissioners.

The amendment, as proposed, states that nothing in the state constitution can be construed to require the Office of the Public Defender to represent a defendant in an initial appearance before a District Court commissioner.

“It impedes a constitutional right in that the natural counsel of record for an indigent defendant would be the Office of the Public Defender,” Montgomery said. “All this does is make it unclear where you go for representation. What it could lead to is conscription of attorneys because representation is still required by the Richmond decision.”

Montgomery said the bar association is working with Frosh and legislators sponsoring other bills to craft a solution before the session ends on April 7.

“Every minute they waste on [SB 1114] this is a minute they don’t have to work on something that is more viable,” Montgomery said.