Saturday, October 9, 2010

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.


  1. Page---Don't we still have a Pre-Trial Release Agency staffing Central Booking?

  2. Buz, pretrial agents staff the Central Booking Facility at Central Booking. However, as I mentioned in my earlier article, they tried to interview defendants before they saw bail commissioners and it backed up the system. Now they see them if they aren't released after seeing the commissioner, and make recommendations to the bail review judge.

  3. Page--So glad you're weighing in on this issue. I don't see a constitutional claim here. Why does a defendant need a lawyer at a bail hearing, when he is guaranteed one before the police can question him, and at every other point in the process? This is procedural perfectionism at its colossally expensive worst. It's Doug Colbert and Company--some of whom are at the Baltimore Sun--who make me feel like a Republican: Let's think up something that will bankrupt the state.

  4. Hal---
    I'm wondering what you think about the Sun's recent articles which argue that juveniles should not automatically be tried as adults.

  5. Buz--In my experience with juveniles coming into state prison after being convicted as adults, the decision to waive them up to adult court was never taken lightly. Almost all of them had long juvenile records and/or very serious crimes. Juvenile court would make more sense if we really knew how to "treat" juvenile offenders. We don't. The therapeutic model for the management of juvenile crime is a substantial failure. I feel badly for young lives so soon blasted, but we have the right to be protected from them. So I don't lose much sleep over keeping repeat juvenile offenders in secure facilities. DOC in recent years has tried to segregate under-21s from older criminals, as at MCTC in Hagerstown and at Patuxent in Jessup, but gathering a bunch of juveniles together has usually resulted in fight clubs. No one wants to admit that when it comes to juvenile crime, we are all baffled.

  6. Wow, Hal! Good points, all!
    I tend to agree with you. My eyebrows arched when I saw the article in the Sun, and I actually got an email from them wanting me to spread the word: Schools, not Jails. Well, who couldn't agree with that? you point out, DJS doesn't do a very good job (and I would argue cannot do it with very hardened "kid" criminals) at rehabilitation.
    Just Kids, I believe, confuses cause and end result in their analyses. They commit more crimes after leaving the adult system, because they were already committing more crimes before entering the adult system. They entered the adult system, in general, because, as you point out, they have usually had long juvenile records for serious crime. We wish we knew how to rehabilitate, but in the meantime they need to be kept away from us.

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