$28M needed to comply with court ruling, public defender says; prosecutors say it will cost them $83M

By Daniel Menefee
Dan@MarylandReporter.com

The Office of the Maryland Public Defender needs $28 million to comply with a court ruling that requires indigent defendants have a lawyer at bail hearings. Prosecutors say it will cost local governments $83 million more.

Public Defender Paul DeWolfe

“We need to comply with this decision,” Maryland Public Defender Paul DeWolfe told the House Judiciary Committee Thursday. “We are an agency that represents approximately 220,000 clients with a staff of 535 attorneys. There are about 500,000 hours of hearing time that need to be staffed.”

DeWolfe won a decision in the Maryland Court of Appeals, DeWolfe v. Richmond, in early January that enforces a provision in Maryland Public Defender Act, which requires indigent persons be represented by counsel when appearing before a district court commissioner. DeWolfe asked the legislature for a $3.5 million emergency request to comply with the court’s ruling by Feb. 3. The Court of Appeals denied his request to stay the decision until funding was available for staffing and logistics.

DeWolfe also said the costs would run $25 million annually.

County prosecutors object to costs

County prosecutors throughout Maryland say the decision will put an additional $83 million burden on local governments because they will need to staff prosecutors for 180,000 hearings to protect the public interest and provide logistics.

Baltimore County State's Attorney Scott Shellenberger

“There are already tons of protections that have been built into the system that have been working for 30 years,” Baltimore County State’s Attorney Scott Shellenberger said. He said the state has always been able to facilitate a public defender within 24 hours of arrest.

The Appeals court ruling “is an unfunded mandate that will stretch the law enforcement resources of every part of the state,” Shellenberger said. “If you think the fiscal note from the Public Defender’s Office is high, wait until you have to double the number of district court judges in the state.” He said that having an attorney present at bail hearings would add countless man-hours to the process and further overcrowd detention centers.

Douglas Colbert, a professor at the University of Maryland law school, worked on the case and testified in favor of funding compliance with the statute–because it would save the state money as well as protect Sixth Amendment rights to counsel. He said that nonviolent defendants are 2 ½  times more likely to be released when represented by a lawyer, as opposed to a nonviolent offender without an attorney. Nonviolent offenders, who could not make bail, cost the state $4,500 over 30 days—as they wait for a second mandatory bail review.

Colbert said 90% of defendants brought before a court commissioner are nonviolent offenders.

Under state law, police cannot hold a defendant for more than 24 hours without a bail hearing and access to counsel.

Del. Michael Smigiel, R-Cecil, asked Colbert if it would be unconstitutional to eliminate commissioners hearings and have defendants appear before a judge within the 24-hour window. He said the fiscal challenges may require eliminating the commissioner process altogether.

Colbert said eliminating the commissioner’s hearing would not violate Sixth Amendment protections.