Editor’s note: In conjunction with OSI-Baltimore’s upcoming forum series, The Burden of Bail, Audacious Ideas is pleased to feature a month-long blog series about pre-trial detention and bail reform. Over the next month, four experts will talk about what can be done to make our pre-trial justice system fair and efficient.
You probably thought that in 2012, Maryland indigent defendants would be guaranteed counsel when their liberty is first at stake. Not so. Maryland’s indigent and low-income defendants continue to appear alone and without an attorney’s representation when first brought before a commissioner. Because commissioners’ initial rulings are usually affirmed by reviewing judges, the initial appearance has become the most important stage for determining whether indigent defendants remain in jail or are freed pending trial. The initial appearance before a court commissioner has become the most important stage for determining whether indigent defendants remain in jail or are freed pending trial because commissioners’ initial rulings are usually affirmed by reviewing judges. Without a lawyer, many Maryland defendants who are charged with non-violent crimes—90 percent of people arrested—are likely to remain incarcerated pre-trial for thirty or more days before returning to District Court.
Law students and attorneys have seen the difference that effective representation makes for people charged with typical non-violent crimes: more than 2 1/2 times as many represented defendants regained liberty on recognizance (no money bail required). An additional 2 1/2 times as many represented defendants received an affordable bail. With public defenders’ effective assistance of counsel at initial appearances, taxpayers would save millions of dollars to hold people who cannot post $100 to $1,000 during pretrial incarceration, instead of returning to family, jobs and school.
Earlier this year, Maryland’s highest Court of Appeals ruled unanimously in our class action suit Richmond v. DeWolfe that indigent defendants have a statutory right to counsel when appearing before a commissioner. Legislators, though, took immediate steps to undo Richmond’s guarantee of counsel. Many recognized the need to reform a pretrial system that functions without a defense lawyer at the initial appearance, but found the projected costs too expensive.
I close with a BOLD IDEA: a pretrial justice system where defense lawyers, judges, prosecutors, police and pretrial services work together at the initial appearance to make efficient use of limited resources, ensure fairness for low-income defendants, and protect public safety. Employ pretrial investigators to present evidence-based information that identifies low- and moderate-risk defendants for pretrial supervision upon release. Encourage prosecutors to identify defendants for whom they can consent to release on recognizance. Support police officers to increase use of citations for misdemeanor charges. Facilitate public defenders interviewing clients and confirming information before first hearings. Applaud judges who employ non-financial release options for defendants who do not require incarceration before trial.
An entire justice system working to guarantee counsel, reduce unnecessary jail costs, and limiting incarceration to defendants posing a clear danger to others or a flight risk. Why is that a radical idea to enhance the administration of efficient and even-handed pretrial justice?
