Using habeas corpus to challenge pretrial detention

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In Baltimore city, 51 percent of criminal defendants are denied bail, according to a 2010 report by the Justice Policy Institute, a Washington, D.C.-based think tank.

There’s one major problem with that statistic, said attorney Zina Makar — pretrial detention is supposed to be the exception to the rule, used only in cases where there is a flight risk or public safety concern.

Through a fellowship program sponsored by the Open Society Institute of Baltimore, Makar hopes to lower that 51 percent statistic by advocating for fair pretrial bail proceedings. As one of 11 fellows who will receive $60,000 and 18 months to implement a social justice program in the city, Makar will target bail practices that hurt indigent defendants and, she said, harm the community as a result.

“I think the overall issue is that we’re losing sight of the purpose of pretrial detention, which is to protect the community,” she said. “You’re bordering the fine line of presuming them to be guilty by denying them bail.”

And that presumption is more than simply unfair, Makar said. It can have a domino effect on an entire community, because people who are held in detention may lose their jobs, eliminating their families’ source of income.

Working with the Maryland Office of the Public Defender, Makar will look at cases at the bail review hearing stage and choose those that exemplify the problems she sees with the bail process, such as cases in which defendants are denied bail or assigned high bail amounts despite a lack of clear and convincing evidence that detention is warranted.

Makar then plans to use habeas corpus petitions to challenge what she sees as unfair bail proceedings by arguing that the defendants have been denied due process.

Makar’s first foray into the realm of pretrial bail proceedings was during a stint as a law clerk at the public defender’s office the summer after her 2L year at the University of Maryland Francis King Carey School of Law. She co-wrote a paper that argued video bail proceedings, in which the defendant is not physically present in the courtroom, are unconstitutional.

“Video bail dehumanizes defendants,” she said. “Just because you have an attorney present doesn’t mean you can get rid of the safeguards that you have in a live hearing.”

In a live bail hearing, for example, a defendant can consult with his attorney, but in a video proceeding, without a private phone line between the two, the defendant has no means of communicating with his lawyer while maintaining attorney-client privilege.

In addition to pursuing specific cases, one of Makar’s goals in the fellowship is to bring attention to pretrial issues like video bail, she said. Despite the Maryland Court of Appeals decision in DeWolfe v. Richmond, which guaranteed the right to an attorney at initial bail hearings, Makar said problems with bail proceedings persist.

“[DeWolfe v. Richmond] makes bail a much more important stage,” she said. “It’s the high court of Maryland telling us that it’s an important part of pretrial and an important part of the defendant’s rights, and we should protect them and safeguard them.”

A final component of the project will involve the creation of a sustainable program — almost like a template — for the public defender’s office that can be used to more easily challenge bail proceedings in the future, after Makar’s 18-month fellowship is up.

By making it easier for future attorneys to figure out the best way to prove that a defendant has been denied their rights before trial, Makar said, eventually pretrial detention may no longer be the norm.

“The goal is to reform the system and bring it back to the reality that this is supposed to be the exception,” she said. “Now, the exception has swallowed the rule — it doesn’t even look like an exception.”