Pretrial issues on lawmakers’ docket

What does the Maryland General Assembly do when its desire to save money collides with a constitutional obligation to fund counsel for indigent people at initial bail hearings?

The answer late last session was to earmark $10 million from the Maryland Judiciary’s $500 million budget this fiscal year to pay private attorneys $50 per hour to represent low-income arrestees. It was an 11th-hour response that many lawmakers regarded as a temporary stopgap to put off the larger issue of pretrial reform until after the election and the start of the 2015 General Assembly.

But a shift in policy appears unlikely — despite a state commission on pretrial reform’s coming call for a dramatic change in how Maryland’s criminal justice system treats arrested individuals in their first hours of custody.

Leaders of the House and Senate judiciary committees say they largely favor the current system over the changes likely to be proposed by outgoing Gov. Martin O’Malley’s Commission to Reform Maryland’s Pretrial System.

The commission, based on its public votes in recent months, will urge lawmakers this week to provide about $30 million to the Office of the Maryland Public Defender so it can replace the Judiciary’s attorney-representation program and provide counsel at the 177,000 initial bail hearings annually before district court commissioners.

The panel, in a report slated for release this week, is also expected to urge the General Assembly to permit testing in various jurisdictions of a computerized risk assessment program to assist — and perhaps replace — commissioners in deciding whether to release or remand to custody a criminal defendant prior to trial.

Similar proposals died in the General Assembly last session, as opponents said the public defender’s price tag was too high and foes criticized as inappropriate the use of a computer instead of a commissioner to make decisions regarding pretrial incarceration.

Del. Joseph F. Vallario Jr., the influential chair of the House Judiciary Committee, opposed both measures last session and said he is likely to do so in 2015 because the current initial bail hearing system appears to be working well.

Under that system, commissioners decide if an arrested individual qualifies for release prior to trial. Factors commissioners weigh in their decision are whether the person — if released — would pose a threat to public safety or would likely not show up for trial.

Defendants remanded to custody have the right to a bail review hearing before a judge, generally within 24 hours.

Vallario said the Judiciary’s six-month-old program of inviting and training attorneys to represent indigent defendants at initial bail hearings should remain in place unless it is shown it is not working and should be placed under the authority of the public defender’s office at three times the cost.

He also said computers should not replace the commissioners’ independent judgment of whether a defendant presents a public-safety threat or risk of not showing up for trial.

“We presently have a risk assessment by presenting [defendants] to the commissioner,” said Vallario, D-Calvert and Prince George’s.

A computer program “doesn’t give a full picture of whether an individual should be available for a bond release or not,” he said. Commissioners can question the defendant to complete the picture, Vallario added.

‘Important first step’

Likewise, Sen. Robert A. “Bobby” Zirkin, incoming chair of the Senate Judicial Proceedings Committee, said any discussion of replacing commissioners with a computer program “will be a nonstarter.”

Zirkin said his views have not changed since last session, when he called the computerized risk assessment program “R2D2,” referring to a robot from the Star Wars movie series,

“I was fairly clear about what I thought about turning criminal justice over to a computer system,” said Zirkin, D-Baltimore County.

Regarding the public defender’s office, Zirkin said he plans to hold a hearing at which private attorneys and district court commissioners will be invited to testify about their experiences under the Judiciary-led program for providing legal representation and whether the program should be continued.

“That’s an important first step,” Zirkin said of his planned hearing. “I will never prejudge legislation until I see it.”

Maryland Public Defender Paul B. DeWolfe said his office should be handling representation at initial bail hearings and not have that responsibility performed through the Judiciary.

“What we bring to the program is expertise in criminal law and experience in supervising, training and scheduling for large dockets and representation,” DeWolfe said. “We’re prepared and will be prepared to represent indigent clients at every stage.”

Maryland District Court Chief Judge John P. Morrissey voiced concern about the Judiciary’s role but declined to comment directly on whether the public defender’s office should be given responsibility for providing attorneys at initial bail hearings.

“It’s an uncomfortable ethical issue for the court to hire attorneys who appear before it,” Morrissey said. “It’s not for me to say who should house this. I think it can be done by others outside the Judiciary without these ethical issues.”

Bail bond system

The pretrial commission is also expected to recommend that the General Assembly end the state’s system of requiring arrested individuals to post bond as a condition of being released from custody before trial. However, many lawmakers said this proposal has little chance of passage because the bail bond industry has a strong lobby and powerful support in the General Assembly, including from Vallario.

“I don’t see that happening,” Vallario said of ending the bail system.

He said the system serves the interests of criminal justice because bondsmen have a financial incentive to ensure that people released on bond show up for trial.

Money provides “a tremendous incentive to locate the defendant and get him to the courthouse,” Vallario added. “They [bondsmen] are going to make sure that person is in court.”

The pretrial commission, in its public sessions, said the state’s bail system is inherently unfair: Low-income defendants are too often held in custody pending trial due to their inability to pay, while wealthier defendants are released because they can foot the bill.

O’Malley called for the creation of the 23-member commission in May to examine and improve how the justice system treats arrested criminal suspects prior to trial. He also asked members to address the feasibility of implementing an objective risk assessment computer program for use at initial bail hearings. Zirkin, DeWolfe and Morrissey served on the commission.

Gov.-elect Larry Hogan’s staff did not return telephone messages seeking comment on his views regarding pretrial reform. Hogan has been reticent to announce specific policy positions in advance of taking office on Jan. 21.

The commission’s creation followed the Maryland Court of Appeals’ landmark Sept. 25, 2013, decision in DeWolfe v. Richmond that criminal suspects have a state constitutional right to counsel at initial bail hearings before district court commissioners.

Attorney Michael Schatzow, who represented the indigent defendants in Richmond and served on the commission, said he hopes the General Assembly will break with past practice and adopt the panel’s recommendations. Legislators have had an additional nine months to consider how indigent defendants are represented at initial hearings, said Schatzow, of Venable LLP in Baltimore.

“While I remain realistic, I am hopeful that the General Assembly would pay attention to the recommendations,” he added. “I remain hopeful that the General Assembly will see the light.”

ABOUT THIS SERIES

This is the fourth in a weekly series of stories by The Daily Record highlighting issues in the upcoming General Assembly session in preparation for the Annapolis Summit, a two-hour program in January featuring the state’s top political leaders. All of The Daily Record stories in the series will be available on our website, TheDailyRecord.com

The summit will be hosted by Marc Steiner, whose “The Marc Steiner Show” on WEAA 88.9 FM at 10 a.m. weekdays is broadcasting a weekly feature on the same subjects as the newspaper series. The show also will be posted at steinershow.org.