ANNAPOLIS — District Court commissioners in as many as seven Maryland jurisdictions could have their initial bail decisions reviewed by a computer program for about two weeks this fall as part of a study to determine the feasibility of a software-based risk-assessment tool.
The Governor’s Commission to Reform Maryland’s Pretrial System on Monday approved the experiment as it prepares to report on ways to improve how the justice system treats people between arrest and trial.
The report, which must be delivered to the General Assembly by Dec. 1, will include the feasibility of using an objective risk-assessment computer program at the initial bail determination to decide whether a suspect should remain in custody or be released before trial.
The commission approved the two-week review over the strong objection of Chief Maryland District Judge John P. Morrissey, who oversees the court commissioners.
Although he sits on the commission, Morrissey said he was not contacted about the review before Monday’s meeting. He also called a review of the court commissioner’s decisions by an Executive Branch agency a violation of the constitution’s separation of powers mandate.
“This is the first I’ve heard about this and it sounds like a fait accompli,” Morrissey told the commission.
The commission’s chairman, criminal defense attorney Richard M. Karceski, said the review is necessary to give the panel some data to include in the Dec. 1 report.
“If we don’t do it, we might as well punt now,” the Towson solo practitioner said of the review. “It’s fourth down.”
Fellow commission member Tammy Brown said the review will be done at the request of the commission’s risk-assessment subcommittee.
Under the review, the computer program’s result will not change the District Court commissioners’ decisions, which generally are reviewed by a judge within 24 hours.
Seven jurisdictions have expressed an interest in participating in the review: Baltimore city and Anne Arundel, Harford. Prince George’s, Montgomery, St. Mary’s and Washington counties, said Brown, executive director of the Governor’s Office of Crime Control and Prevention.
Risk-assessment programs evaluate the danger a defendant would pose to the public if released and the likelihood that he or she would be a “flight risk” and not show up for trial. The programs base the assessment on a series of factors, which generally include the seriousness of the crime charged, the defendant’s criminal history, current employment and location of family members.
How D.C. does it
In addition to approving the review, the governor’s commission heard from members of Washington, D.C.’s criminal justice system, where a computerized risk-assessment tool contributes to the pre-trial release decision.
D.C. Superior Court Judge Lynn Leibovitz said the risk-assessment tool and recommendations from the city’s Pretrial Services Agency enable judges to make informed decisions about the risks posed by releasing a defendant, including flight risks and the risk to public safety.
Leibovitz said 85 percent of defendants in the district are released prior to trial, with the other 15 percent held as a flight risk or a potential threat to public safety.
Spurgeon Kennedy, of the city’s Pretrial Services Agency, said a risk-assessment tool can “quickly and accurately” if a defendant presents either risk.
Maryland Public Defender Paul B. DeWolfe, a member of the governor’s commission, said the district could serve as a model for the state, which he said detains too many people who could safely be released prior to trial.
“We are doing something wrong,” DeWolfe said. “There really is something more that can be done for our pretrial jail population.”
The commission’s creation stems from the Court of Appeals’ landmark Sept. 25 decision in DeWolfe v. Richmond that criminal suspects have a state constitutional right to counsel at initial bail hearings before District Court commissioners.
In April, at the close of the legislative session, the General Assembly rejected a proposal for a largely computerized system and, instead, earmarked $10 million from the Maryland Judiciary’s $500 million fiscal 2015 budget for the appointment of private attorneys to provide counsel at initial bail determination.
Gov. Martin O’Malley called for the creation of the 23-member commission in May to examine and improve how the justice system treats suspects between arrest and trial, including the feasibility of implementing an objective risk-assessment computer program at initial bail hearings.
Other commission members
In addition to Karceski, Brown, Morrissey and DeWolfe, the commission members are Paul F. Kemp, an attorney at Ethridge, Quinn, Kemp, McAuliffe, Rowan & Hartinger in Rockville; Harford County Sheriff Jesse Bane; Brian J. Frank, president of Lexington National Insurance Corp., Michael R. Merican and Mary Lou McDonough, of the Maryland Correctional Administrators Association; Cherise Fanno Burdeen, executive director of the Pretrial Justice Institute; Angela Y. Talley, division chief of pretrial services for Montgomery County; Timothy F. Maloney, of Joseph, Greenwald & Laake P.A. in Greenbelt; former Prince George’s County Circuit Judge Steven I. Platt; Sheridan Todd Yearey, of the NAACP Maryland State Conference; Michael Schatzow, of Venable LLP in Baltimore; Jacqueline Robarge, founder of Power Inside, which serves women and girls who survived gender-based violence; state Sens. Christopher B. Shank, R-Washington, and Robert A. “Bobby” Zirkin, D-Baltimore County; Dels. Joseline A. Pena-Melnyk, D–Anne Arundel and Prince George’s, and Luke H. Clippinger, D-Baltimore City; Wendell M. France of the Maryland Department of Public Safety and Correctional Services; Dorothy J. Lennig, legal director of the House of Ruth Maryland; and Baltimore County State’s Attorney Scott D. Shellenberger.