ANNAPOLIS – A bill to require triennial evaluations of the questionnaires many judges use to assess whether defendants should be released before trial drew criticism Tuesday from lawmakers, who expressed concern about the cost of the consultant-driven questions and asked whether the assessments are a better means than bail for ensuring defendants show up for trial.
Del. Julie Palakovich Carr, in defense of the measure she sponsors, said pretrial risk-assessment questions have greatly helped judges determine if a defendant would pose a flight risk or a danger to the community if released before trial. These assessments have been critical for judges in the years since Maryland severely limited the use of bail as a means to ensure a defendant’s appearance at trial, said Carr, D-Montgomery.
Thus, a periodic review of the questions is necessary to ensure they continue to gauge accurately the likelihood of a defendant’s flight or community risk as Maryland’s criminal laws change – particularly those regarding expungement and marijuana use — and as human behavior is better understood, Carr told the House Judiciary Committee as it reviews the legislation.
Re-evaluation of the questions is needed to ensure they “are giving accurate and reliable results” on which judges can rely, Carr said. “The decision (regarding pretrial release) is in the judge’s hands still.”
Pretrial questionnaires are not used throughout Maryland. Indeed, six counties — Allegany, Charles, Garrett, Howard, Somerset and Washington — do not have a formal pretrial services program, according to the Department of Legislative Services.
Del. Robin L. Grammer Jr., a Judiciary Committee member, questioned the price of the assessments and re-evaluations — for which consultants charge from $15,000 to $50,000 – and asked whether a less expensive state panel could be established to develop and periodically evaluate the questions asked regarding defendants. Grammer also voiced concern about consulting companies that cite proprietary information in not disclosing the methods they use to develop the questions posed, including questions about a defendant’s criminal history and ties to the community.
“Anytime you have a shielded system, I have a question mark over it,” said Grammer, R-Baltimore County.
Del. Susan K. McComas, R-Harford, questioned the efficacy of pretrial assessment questions, saying they do not protect the public or ensure a defendant shows up for trial as well as the bail system, which the state has largely abandoned due to concern that it violates the constitutional rights of low-income individuals who cannot afford bail.
McComas, a Judiciary Committee member, said bail works because the bail bondsman or family member who puts up the defendant’s money will ensure the person shows up for trial – a level of certainty not provided by a pretrial questionnaire.
“I’m not sure we’re moving the ball forward with regard to public safety,” McComas said of pretrial assessments. “We’re going into this more sanitized area and I’m not sure it’s as effective.”
But Toni Holness, of the American Civil Liberties Union of Maryland, called the risk-assessment questions a welcome substitute for bail but said they must be reviewed every few years to ensure they accurately reflect a defendant’s risk of flight before trial or danger to the community. Holness told the Judiciary Committee that money paid to consultants to develop and re-evaluate the questionnaire is offset by the cost savings of not needlessly keeping defendants in jail before trial.
The legislation, House Bill 49, has been crossfiled in the Senate. Sen. Jeff Waldstreicher, D-Montgomery, is the chief sponsor of Senate Bill 68.