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Douglas Colbert, who directs the Access to Justice Clinic at the University of Maryland Francis King Carey School of Law, calls the way the proposed legislation is headed ‘a huge disappointment.’ (File photo)

Bill on bail hearings gaining traction

Hearing Wednesday on bill that would remove commissioner discretion

The pretrial-reform legislation gaining the most traction in the General Assembly this session could render moot the right to counsel at initial bail hearings by eliminating the discretion of district court commissioners in deciding who is released or remanded to custody before trial.

The bill, which the House passed 87-48 this month, would give commissioners no choice but to release an arrestee if the crime charged is punishable by no more than 18 months in jail.

House Bill 494 would require commissioners to remand arrestees to custody for more serious offenses or if the police officer certifies by affidavit that the person arrested either poses a credible public safety risk or would likely not return for trial if released.

The legislation would also give police discretion to charge by citation, rather than arresting and bringing before a commissioner, a person suspected of having committed a misdemeanor punishable by no more than 90 days in jail.

Those remanded would retain the statutory right to counsel at a subsequent bail hearing before a district or circuit judge “without unnecessary delay.” But critics of the bill say a person arrested late Friday could spend nearly three days in jail — four if Monday is a holiday – because judges do not work on weekends.

‘Liberty at stake’

“It’s a huge disappointment to see the legislature continue to undermine the constitutional rights of low income defendants when their liberty is at stake,” said law professor Douglas Colbert, a longtime advocate for providing counsel to indigent arrestees at initial bail hearings.

The bill would “enhance the power of arresting police officers to decide whether someone poses a threat to the public,” added Colbert, who directs the Access to Justice Clinic at the University of Maryland Francis King Carey School of Law. “No longer is this a judicial decision, but rather we are giving police the power to grant a person’s most precious right to freedom…. This is truly a step backwards.”

But Del. Curt Anderson, the bill’s chief sponsor, said the legislation’s goal is to sharply reduce the number of initial bail hearings through the use of police citations and summonses and reduce the need for state-paid attorneys by eliminating the discretion of district court commissioners.

“The ability of the state to pay for a public defender at these initial bail hearings would be greatly enhanced” if the bill becomes law, said Anderson, a Baltimore Democrat. “The intention of the bill is that they [who commit minor crimes] don’t get locked up, period,” before trial, he added.

The Maryland Office of the Public Defender has placed at $30 million its estimated yearly cost of providing counsel at the 177,000 initial bail hearings held annually statewide. The Maryland Judiciary, which has handled the appointed counsel responsibility since July 1, said it has spent less than $10 million.

The Senate Judicial Proceedings Committee is scheduled to hold a hearing Wednesday on the House-passed bill. Sen. Robert A. “Bobby” Zirkin, who chairs the panel, said he generally favors commissioners having discretion but will reserve judgment on the measure for now.

“We will look at every piece of legislation,” said Zirkin, D-Baltimore County.

‘Every case is unique’

“I continue to believe that having judicial officers have discretion is a good thing,” he added. “Every case is unique. You really have to take a totality of the circumstances look at each of these cases.”

Removing the commissioners’ discretion could obviate the requirement, announced by Maryland’s top court, that counsel be provided to indigent defendants at initial bail hearings, supporters and opponents of the bill said.

The Court of Appeals held in its Sept. 25, 2013, decision in DeWolfe v. Richmond that arrestees have a state constitutional right to counsel at the initial hearings before commissioners because their decision could result in incarceration. Removing the commissioners’ discretion, or decision-making authority, thus removes the basis for the right to counsel, supporters and opponents said.

The bill, by seeking to remove counsel from the initial hearings, runs counter to recommendations a state commission made in December for protecting the rights of arrested individuals in the pretrial process — including the assurance that an attorney trained by the public defender’s office would be representing them at the initial hearing at which bail is set.

The Governor’s Commission to Reform Maryland’s Pretrial System said the Office of the Maryland Public Defender should replace the Judiciary’s attorney representation program and provide counsel at the 177,000 initial bail hearings annually before district-court commissioners. Maryland Public Defender Paul B. DeWolfe, a member of the commission, voted for the recommendation, saying his office has the expertise in representing indigent criminal defendants at every stage of the judicial process.

$10M earmark

Last year, the General Assembly earmarked $10 million from the Judiciary’s budget for the Appointed Attorneys Program, under which lawyers are paid at a rate of $50 per hour to represent defendants at initial hearings. The Judiciary has included a similar amount in its fiscal 2016 budget in the absence of legislative action.

Attorney Mitchell Y. Mirviss, who represented indigent arrestees seeking counsel in the Richmond case, said providing lawyers at initial bail hearings has led to the pretrial freedom of at least 15 percent more arrestees.

“Having achieved that success we are going to throw it all away and violate the Constitution at the same time,” Mirviss said, citing the constitutional right to due process of law. “It’s very distressing.”

Mirviss is with Venable LLP in Rockville.

Then-Gov. Martin O’Malley called for the commission’s creation in May to make recommendations for improving how the justice system treats arrested criminal suspects prior to trial in light of the high court’s decision in Richmond.