The Non-Fix to the Bail System

How would the citizens of Maryland like to pay the many millions it would cost to provide a lawyer for every single person arrested throughout the state?

That's the prospect created by Baltimore Circuit Judge Alfred Nance's decision last week in Richmond v. District Court, in which he ruled that the poor are entitled to a lawyer at their first appearance before a bail commissioner after arrest. While the decision in theory applies to the poor, in reality the state would have to make lawyers available 24 hours a day, 365 days a year throughout the state at every commissioner hearing.

In reversing a decision he first made in 2007, Nance relied upon a 2008 Supreme Court case that arose out of Texas. A defendant arrested for a handgun offense was taken to a magistrate (the Texas version of a commissioner) where he was told of the charges against him and given a bail. He posted the bail but was denied an attorney because he wasn't in jail and prosecutors hadn't yet decided whether to pursue the case.

The justices held that his appearance before the magistrate made the defendant eligible to have an attorney appointed for him to handle his case. They did not rule that he had the right to an attorney at the hearing itself. (Much like turning 16 makes one eligible for a driver's license but doesn't award the license on the 16th birthday.) Maryland already offers free attorneys to poor defendants who are released after seeing a commissioner.

Nance is known more for inappropriate conduct towards female attorneys and rude, boorish behavior towards persons in his courtroom than for his legal acumen. In any event, his decision will be appealed, and whoever loses before the state Court of Appeals will probably appeal to the U.S. Supreme Court, so the final decision will take awhile.

As I pointed out in Lots of Money, Little Justice, appointing lawyers to represent defendants before bail commissioners would bring enormous cost to taxpayers while providing little benefit in return. 46% of defendants already are released statewide without posting any bail (and 47% in Baltimore.) Adding lawyers would slow the commissioner process down significantly and hold people in jail longer without appreciably changing the results.

The driving force behind the Richmond v. District Court lawsuit is Doug Colbert, a law professor specializing in bail issues. Colbert's a darling of radio talk show host Marc Steiner and is frequently published in the Baltimore Sun, but his credibility within the criminal justice system suffers from the fact that he obscures and omits facts that are inconvenient to his point of view. He also merges two distinct issues in his advocacy: the unfair impact of the bail system upon the poor, and his belief that more people should be released before trial regardless of their economic status.

For example, in the Richmond case he presented all his clients as being inappropriately incarcerated, failing to mention when they had failed to appear for their trial, had committed more crimes while waiting for trial, or really weren't poor and unable to make bail. To Colbert, these facts aren't relevant and are harmful to his argument, so he leaves them out.

And his solution is to throw public money at the bail system by adding another layer to the process. Actually, Colbert suggests two 'reforms': give every arrested person a lawyer at the bail hearing, and have prosecutors recommend the release of defendants. In other words, let's spend millions and millions of dollars to hire extra defense attorneys and prosecutors around the clock throughout the state of Maryland to do what bail commissioners are already paid to do.

I will give Colbert this: he has called attention to the fact that our bail system does need reform. While he undermines his cause and credibility with misleading descriptions of his clients, dubious claims about cost-savings, and expensive, unproven solutions, he's right that something needs to be done.

And it won't cost a thing, except the willingness to dispense with the status quo. I'll expand on this in my next blog on the bail system.