Monday, February 22, 2010

Lots of Money, Little Justice

originally published January 19, 2009
If Maryland lawmakers struggling with this year’s budget want to prevent an expensive waste of money, they should amend the Maryland Public Defender Act to bring it clearly in line with federal law. Otherwise, taxpayers may have to foot the bill for lawyers to be available around the clock at every criminal booking location in the state, costing a whole lot of money for very little justice.

The issue stems from Richmond v. District Court, a case argued before the Court of Appeals earlier this month. Eleven named plaintiffs, all of whom were arrested for crimes in Baltimore in November 2006, contend that poor persons are entitled to free lawyers at the time they see District Court commissioners. Commissioners make the initial decision as to whether accused criminals can be released from jail before trial.

Federal law is quite clear: the right to counsel under the Sixth Amendment of the Constitution does not apply to initial bail hearings. The Maryland Public Defender Act (PDA) provides free lawyers to the poor whenever defendants have a constitutional right to representation, which doesn’t include the bail hearing.

But the plaintiff’s lawyers are attempting to exploit a loophole in the language of the PDA’s language to change that. If the Assembly fails to close this loophole it takes the chance that the state’s highest court will interpret the PDA to create a right the state cannot afford to fund. 
Let me be clear about this: I want accused criminals to have representation. I want them to have good representation. When I was an assistant state’s attorney, lazy defense attorneys annoyed me every bit as much as lazy prosecutors. 

But there is no reason for Maryland to offer free lawyers at bail hearings where the Constitution does not require it. It’s too expensive and too impractical. The lawsuit’s high-minded theory of justice has little to do with reality or with justice. (It also omits significant facts. See below.) 

The lawsuit is premised upon conditions and procedures at Baltimore’s Central Booking and Intake Facility (CBIF), yet ignores its history. When CBIF was first built about a dozen years ago, the plan was for agents from the state’s Division of Pretrial Release to interview accused criminals before they saw bail commissioners. They could then verify information about the defendants’ home and employment to help commissioners make their decisions.

Except that it didn’t work. In Maryland persons arrested for crimes must be brought before a commissioner within 24 hours of arrest. But first they have to be transported to CBIF, booked, charged, fingerprinted, photographed, and screened for health problems.

When pretrial agents tried to add themselves to the queue at CBIF they backed it up. There wasn’t enough space for them to privately interview the arrestees. And their interviews added little to what commissioners already had before them--criminal history and charges—and what commissioners could get for themselves from the defendants. The biggest contribution that pretrial agents make to the process is to verify what offenders tell them. There wasn’t enough time at CBIF to accomplish that.

Creating a right to a lawyer would require the 24-hour availability of public defenders not only at CBIF but at every place throughout the state where offenders are booked. They would have to interview every single person arrested to see if they qualified for free services, using private spaces that may or may not exist, and verify the information defendants give them within a tiny window of time. In other words, they would have to do exactly what pretrial agents were unable to accomplish at CBIF.

The commissioner’s bail hearing isn’t a trial. It’s a first, fast effort at releasing those who don’t appear to pose a public safety threat, and to set conditions of release for those who do. From my long experience working in CBIF, commissioners do their best to release people (and in fact release nearly half.) Nearly everyone without a record is released unless they are charged with a violent crime.

Even persons with records are released for minor, non-violent offenses, unless they failed to appear for court or are on probation or parole (and even then they may be set free again.) Many are released even when they are pending other cases, something that frustrates local community leaders to no end.

To require legal representation for the non-violent, least threatening group of offenders—the ones who in theory could most benefit from counsel--is counterproductive. They would actually have to stay in jail longer than they do now waiting for interviews from the public defender.

And having public defenders at the commissioner hearing would give the poor more representation than the non-poor. How many people can arrange to have lawyers drop everything and run down to CBIF within 24 hours of their arrest or in the dead of night? Even the richest, baddest drug-dealers rarely have representation before commissioners. There just isn’t time. And if a commissioner sets a bail that a defendant can’t pay, the bail is reviewed by a judge either the same day or the next business day. They get a second chance. (I plan to discuss bail reviews in a future article.)

The governor or some legislator should be drafting legislation to clarify the intent of the Maryland Public Defender Act. Otherwise, it may be used to make citizens fund public defenders 24-hours a day statewide, something that justice does not require and Maryland cannot afford. 

The Rest of the Story 

Douglas Colbert, co-counsel in the Richmond case and a law teacher at the University of Maryland, is well-known within local criminal justice circles for his relentless efforts to reform the bail system. He tenaciously maintains that many people are unnecessarily locked up pending trial. Not only did he co-write the legal brief, he cited his own studies as evidence to support his arguments. 
But many working inside the system, including those sympathetic to the issue of bail reform, find his claims and evidence often lacking.

For example, he argued to Baltimore’s Criminal Justice Coordinating Council in December of 2007 that many, many defendants were locked up on unjustifiable bails during the holiday season. In response the Public Defender, Pretrial Release, State’s Attorney’s Office and judiciary took a second look at those in jail waiting for trial. (CBIF has a bed capacity of nearly 1,000, and more are held at the Baltimore City Detention Center.) After all their work, a total of four had adjustments made to their bails. 
After the Richmond case was argued the Baltimore Sun reported the following:

University of Maryland law Professor Doug Colbert, who assisted with the case and has worked on bail reform issues, said that the lawsuit was for the two-thirds of suspects who are not veterans of the system. These people are "terrified," "emotionally shaken" and "traumatized" by their experiences in the city's overcrowded jail, he said.

Colbert claimed that two out of three arrestees have a “minimal” criminal history, which he defined to be fewer than three arrests. Yet nine out the 11 plaintiffs named in the lawsuit had at least three prior arrests, while a tenth had one prior arrest and two pending cases. (I couldn’t verify the eleventh plaintiff’s record.) If it’s true that those held in jail with “minimal” records are so plentiful, why didn’t they show up as plaintiffs?

The legal brief also dressed up some of its plaintiffs to make them sympathetic. For example: 
“Myron Singleton, a lifelong resident of Baltimore City and father of seven, had lived with his grandmother and worked for his grandfather’s company as a cement layer. Arrested and detained on the misdemeanor offense of marijuana possession, he had bail set by a commissioner at $10,000.” 
The italics, I guess, are supposed to convey the unfairness of the bail, though we don’t know how much marijuana he had or what he was doing with it. Never mentioned was the fact that Singleton was a one-man crime wave who had been arrested twenty times prior to the lawsuit. (My italics this time.) Burglary, drug-dealing, car theft—all multiple arrests for these offenses. And he was pending two other cases when he was arrested on the marijuana charge, something else the brief failed to mention.

But the most interesting plaintiff has to be Quinton Richmond, for whom the case is named. Richmond had five arrests at the time the lawsuit was filed, two for drug-dealing, and has been arrested three more times since. He was released from jail almost immediately in all of his cases, posting bails as high as $75,000. And after the November 2006 arrest that prompted Richmond v. District Court, he promptly posted a $25,000 bond and hired private defense attorney Stanley Needleman to defend him on his drug-dealing charges. 

Richmond isn’t “terrified” of a system that releases him over and over. And he doesn’t need a free lawyer. Yet here he is, headlining a lawsuit supposedly on behalf of the poor and “traumatized.” 

Is this the justice we should expect for our tax dollars if the Court of Appeals rules in Richmond’s favor?

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