A Maryland Court of Appeals decision on defendants’ rights to an attorney when bail is set is expected to lead to substantial restructuring of the state’s criminal justice system.
But no one’s sure what that change will be.
The controversy stems from a 2012 decision in DeWolfe v. Richmond. The court held that District Court commissioners can’t determine bail for indigent defendants at an initial appearance without an attorney — unless the defendant waives the right to an attorney.
The decision sparked a fierce debate about the impact on and cost to the court system if public defenders were required to be at any initial appearance. The debate also centered on ripple effects of the decision, such as the need to also have prosecutors and other court personnel present.
The decision, as it stands, would require public defenders to be available 24 hours a day, seven days a week, and to provide services in about 170,000 hearings a year where they aren’t currently present, said Maryland public defender Paul B. DeWolfe.
“We don’t have resources to do that right now,” DeWolfe said Thursday.
DeWolfe said the court has postponed a final decision until June, giving the General Assembly time to come up with a solution.
Two Montgomery legislators — Sen. Brian E. Frosh (D-Dist. 16) of Bethesda and Del. Kathleen M. Dumais (D-Dist. 15) of Rockville — are at the forefront of efforts to address the problems created by the decision.
Frosh’s bill would implement an objective evaluation system looking at factors such as prior criminal record and any previous failures to appear for trial to determine whether defendants should be released. There would be a statewide system of pretrial services to administer the evaluations and maintain contact with defendants while they await trial.
Ten counties, including Montgomery, and Baltimore city already have pre-trial services units and would be compensated by the state for their operation. Units would be created in the other 13 counties.
Frosh said Wednesday that the evaluation system will do a better job of evaluating whether a defendant should be released than the current system of court commissioners.
Some commissioners still would be necessary to issue domestic violence protective orders, warrants for police officers and other services they provide now.
But even Frosh described his bill as a “template,” and said he expects it to be amended significantly.
There are great differences of opinion on the subject, with lots of details to be worked out and perspectives to factor in, he said.
“It’s a political and policy struggle,” he said.
An analysis of Frosh’s bill by the state’s Department of Legislative Services estimates that it would cost that state more than $32 million in fiscal 2015.
There are as many as nine bills pending in the General Assembly, Arthur Wallenstein, director of Montgomery County’s Department of Correction and Rehabilitation, told the County Council Tuesday.
“I think I can say to you we’re not even close to a decision at this point,” Wallenstein said.
Until you know what the requirements will be, it’s hard to put a potential price tag on the changes, he said.
Montgomery County State’s Attorney John McCarthy said whatever changes are made will cost money.
McCarthy said courts will have to be open on Saturdays and Sundays for judges to hold bail hearings.
That creates a cost to the state to open buildings, as well as to the county for transporting prisoners and other activities.
McCarthy said his office would have to hire or assign prosecutors to hearings on weekends. They’ll work alongside public defenders, judges, clerks, bailiffs and other courthouse personnel.
He said there’s a difference of opinion among state’s attorneys on whether they must have a prosecutor at bail hearings, but Montgomery will have an attorney present at every hearing.
It would be “political suicide” if a defendant commits a serious crime after being released following a hearing with no prosecutor present to argue why the person should be held, he said.
“From my standpoint, we have to have someone there,” he said. McCarthy said he believes the appeals court’s decision was incorrect, but it’s an opportunity to make the state’s court system better and more efficient.