By Sam Smith
The Maryland Public Defender Office has been providing representation since June to all defendants seeking counsel in their bail review hearings. But a Justice Policy Institute report released last month on the bail system in Baltimore City found the money-bail system itself discriminates against lower income defendants.
The Maryland Court of Appeals ruled in January that legal representation must be provided to defendants for their initial bail commissioner hearing, but the General Assembly changed the public defender statute so the state would not have to increase funding to public defenders for indigent clients.
Bail review hearings are done by a judge who can alter initial bail decisions made by non-lawyer bail commissioners.
Law changed to avoid hiring more attorneys
The public defender statue originally required representation for commissioner hearings, but that would have required the state to provide counsel for the nearly 75,000 commissioner hearings every year. The public defender office would have had to triple in size, said Jerome LaCorte, chief attorney in the office of the public defender.
It is not new for public defenders to be present for bail reviews, but a change in the policy now has more than just the office’s newest attorneys dealing with bail matters. Every attorney in the public defender’s office will have to do bail reviews and reviews are now held six days a week from Sunday to Friday.
“Typically our people that did bail reviews was a new lawyer and they were positioned in central booking,” said Sen. Lisa Gladden, vice-chair of the Judicial Proceedings Committee and a public defender herself. “That whole unit has been disbanded. Every unit from the juvenile to the district court to the circuit court, everybody in the public defender’s office, will have to do a bail review. That’s very different from what we have been accustomed to doing.”
LaCorte said although he is not sure if there will be any response by the judiciary to the Justice Policy Institute report, changes to bail representation are happening independently of the report.
“That is a huge change because that has always been considered a non-critical proceeding in which someone is not entitled to counsel,” LaCorte said.
Most people in Baltimore jail not offered bail
According the report, 57% of the people in the Baltimore City jail were incarcerated because they were not offered bail or any terms of release. Many who are offered bail can’t easily afford to pay it and the financial impact effects innocent family members.
“In most cases, the bail commissioner has the authority to release people on their own recognizance, but in Baltimore City, this rarely occurs,” the report said. “In fact, most people in Baltimore City are not offered release under any conditions.”
The Pretrial Release Project at the University of Maryland found that 70% of people who were expected to pay a bond found it difficult to make a payment without interfering with important expenses such as rent, utilities or groceries.
Those defendants that are not offered bail or can’t afford to pay bail must wait until their court date for any possibility of their release. Often times, it can take months until the trial date. Whether the defendant is innocent or guilty, a prolonged stay in jail will likely cost them their employment.
“They aren’t criminals; they are people who have been charged with crimes,” Gladden said. “I can charge you for murder tomorrow. You are charged with it and that is the thing about bail. It is associated with charges, not convictions. Before we focus on institutional errors, we need to focus on fairness, because a lot of this is just unfair.”
Bonding costs 10% of bail set
High bails are set to ensure that the defendant shows up to court. But, sometimes the cost does not fit the crime. Although defendants and their families can go to a bail bondsman, the use of bonding companies is not made easy. Bondsman are required by the state to charge a 10% premium. That means if a defendant has bail set at $5,000 the defendant must pay a $500 fee that won’t be refunded when they show up in court.
“We still do that, we have for-profit business which is making money off of people whose family members have been incarcerated,” LaCorte said. “It’s sort of an antiquated system, using bondsman.”
There are other conditions of pretrial release that don’t rely on financial terms. The report highlights Washington D.C. as an example of how to run a pretrial release system without having to rely on money bail.
D.C. seen as reform model
In D.C., they let more people out of detention on their own recognizance after they are questioned by the Pretrial Services Agency. Based on a 38-point risk assessment, the agency determines the defendant’s flight risk and danger to society.
Gladden said that she supports creating a new bail system in Maryland and would like to see it modeled after the D.C. bail system. However, this was something she tried to do 10 years ago but couldn’t get a bill out of committee. Gladden said that the problem lies in the fact there are too few criminal lawyers in the General Assembly that understand the ramifications of the current bail system.
“Which legislator is going to say, except us public defender legislators, maybe we shouldn’t have bail, we should let people go?” she said. “Most people are not going to be able to justify cutting people lose.”
2001 report recommended changes
In 2000, Chief Judge Robert Bell of the Maryland Court of Appeals created the Pretrial Release Project Advisory Committee that made a number of recommendations of how Maryland can improve the pretrial release system in a report dated Oct. 11, 2001.
One recommendation states: “Maryland Rules shall make clear that the use of monetary bail should be sparing, limited to situations when no [other] condition of release will reasonably assure the appearance as required.”
Another recommendation called for the creation of a statewide pretrial release agency, similar to the D.C.’s Pretrial Services Agency, that would provide judicial officers with necessary information to make a pretrial release determination.
Since a bachelor’s degree is the only requirement for bail commissioners, many commissioners do not have any legal background or training. One recommendation stated “judicial officers shall receive training and education with regard to pretrial release determinations prior to assuming judicial duties and at annual judicial seminars.”
However, recommendations made by the Pretrial Release Project Advisory Committee and the Justice Policy Institute have not been implemented. Gladden and LaCorte both feel that is because the lobby for the bail bonding industry in Annapolis is too strong.
“They have a very powerful lobby in the state legislature,” LaCorte said. “It’s a very powerful financial interest because these people make a lot of money on it.”