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Richard M. Karceski, chairman of the Governor’s Commission to Reform Maryland’s Pretrial System, said the proposals in the final report ‘serve as an important step forward for pretrial reform in Maryland.’ (The Daily Record/Maximilian Franz)

Commission: General Assembly should abolish ‘inherently unfair’ bail system

A Maryland commission on pretrial reform Friday called on the state to stop requiring people to post bond after arrest as a condition of being released from custody before trial.

The Governor’s Commission to Reform Maryland’s Pretrial System called the state’s bail system 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, the commission stated.

The call to eliminate bail was the most controversial of the 23-member panel’s recommendations to the General Assembly for improving how Maryland’s justice system treats arrested criminal suspects prior to trial.

In its 77-page report, the panel also recommended dismantling the Judiciary’s attorney-representation program, which started July 1, and instead have the Maryland public defender’s office provide counsel at the 177,000 initial bail hearings annually before district-court commissioners.

Maryland Public Defender Paul B. DeWolfe, who served on the governor’s commission, said his office has expertise in representing indigent criminal defendants at every stage of the judicial process.

The panel also urged the General Assembly to allow various jurisdictions to test a computerized risk assessment program to assist District Court commissioners in deciding whether to release or remand to custody a defendant before trial. The computer program should be used to assist — but not replace — the commissioners in determining at initial bail hearings if a defendant would be a threat to public safety or unlikely to show up for trial if released, the panel said.

“Although pretrial risk assessment instruments provide an objective, standard way of assessing the likelihood of pretrial failure, they should not be used to replace judicial discretion,” the report stated. “The assessment tool should serve as a guide/resource for a judicial officer to consider when making a pretrial release decision.”

Gov. Martin O’Malley created the commission in May to make recommendations for improving how the justice system treats arrested criminal suspects prior to trial.

The move 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.

Richmond and other current events gave the commission “many complex issues to consider,” criminal defense attorney Richard M. Karceski, the panel’s chair, stated in the report.

“These recommendations serve as an important step forward for pretrial reform in Maryland,” added Karceski, who did not return telephone messages seeking further comment Friday.

Fighting for bail

On the contentious question of eliminating bail, two of the panel’s members filed a joint dissent that said the bail system serves an important purpose.

“When family members, loved ones or friends have put financial resources toward effecting a defendant’s release pretrial, it is an incentive for the defendant to appear in court,” wrote state Sen. Christopher B. Shank, R-Washington, and Baltimore County State’s Attorney Scott D. Shellenberger in their dissent. “With financial resources on the line many defendants will not fail to appear for fear of financial loss. The defendant’s personal investment in the current system of pretrial release has a useful place within the pretrial system.”

Bail bondsman Brian J. Frank dissented from the entire report, saying the panel’s recommendations amount to “a non-solution to a non-problem” and fail to consider the price of reforms.

“Perhaps, most importantly, the commission chose not to undertake a financial cost analysis of its sought-after ‘Pretrial Utopia’…,” wrote Frank, president of Baltimore-based Lexington National Insurance Corp. “Suffice it to say, the commission ignored the most relevant data and consciously determined not to look at costs because many of its members were predisposed to the outcomes set forth in the report.”

Failing the elimination of bail, the report also recommended that the Maryland Insurance Administration monitor cash bail and determine if changes need to be developed and implemented.

The panel was critical of the General Assembly’s earmarking of $10 million from the Judiciary’s $500 million budget this fiscal year to pay private attorneys $50 per hour to represent low-income arrestees at initial bail hearings.

“The commission recommends that under no circumstances should we institutionalize the judicial branch of government as the line manager of what amounts to the Lawyer-Referral Service Program for Attorneys to represent indigent criminally accused in their first appearance before a commissioner,” the report stated. “The Office of the Public Defender was created by statute to represent indigent criminally accused.”

Maryland District Court Chief Judge John P. Morrissey, who oversees the Judiciary’s Appointed Attorneys Program, declined to comment directly on the panel’s recommendation.

Generally, however, Morrissey said it was “an uncomfortable ethical issue for the court to hire attorneys who appear before it” and that others “outside the Judiciary” would not have the same ethical issue.