Wednesday, March 7, 2012

A Well-Intentioned Mess

Well, our legislators can't help themselves.  They can't just amend the Public Defender's Act to keep taxpayers from spending unnecessary money, they want to mix in other issues and attempt to make it bullet-proof against a future lawsuit.

Their intent is good.  But drafting on the fly is not.  

Thanks to the abdication of the governor, they're on their own in trying to be both fiscally responsible and fair.  But they don't have to do it all at once. 

The Black Caucus wants a quid pro quo for its support: force police officers to issue more citations, an alternative to sending defendants to a commissioner for a bail determination.  I am sympathetic to the intent, but wary of a quick bill that could actually do more harm to their constituents.

Gone, for example, may be the statement of probable cause, which provides defendants the alleged facts behind the charges.  Identity fraud --where defendants give false names to police officers, resulting in the arrest of innocent people when defendants fail to show up court--may increase without proper safeguards.

One bill allows officers to write citations for crimes that carry three-year penalties, and then lists 31 exceptions.  Enough said.

The Senate wants judges to review commissioner bails within 48 hours, a decent idea in theory.  It would eliminate the weekend waiting time, making District Court judges work one weekend day and two days over the Thanksgiving break (since the judiciary awarded itself an extra paid holiday on the Friday after Thanksgiving.)

I hear the judges are screaming about this, a bit ironic in view of their ruling that attorneys should work around the clock.  But they'll be sure to take of care of themselves, like putting in an hour or two on a weekend day and taking another full day off to compensate. 

But the 48-hour rule could have a significant consequence everywhere else. Unless some new, creative procedures are used, courthouses in every county will have to be opened and secured on weekends, prisoners transported, and clerks and attorneys staff the courts. Everyone will put their hand out for more funding.

One of my biggest beefs about government is the reflexive request for more money, rather than inventing new procedures. I'll bet that all the agencies involved can think of better, low-cost ways to handle faster bail reviews, if given the time and direction to do so. 

I have other questions for legislators, such as their proposed law that anything a defendant says to a commissioner is inadmissible in court.   Suppose a defendant threatens a commissioner after getting a bail he doesn't like? Inadmissible?

How about the requirement that if a prosecutor, police officer or defense attorney provides information to a commissioner, the other "party" has to be notified. Doesn't this imply that a defendant then has a right to an attorney before the commissioner?

And do legislators really want city prosecutors to stop making written bail recommendations on violent and gun-toting defendants and possibly let them hit the street before a judge reviews the bail?   The purpose of the original lawsuit was to keep more non-violent offenders from being locked up because they were poor.

Delegate Curt Anderson made the most sense when he told WYPR, "We're hit with this in the middle of the session. There's a lot of people to talk to and you really can't solve it in a couple of weeks or even a couple of months."

So here are my recommendations to the General Assembly:

(1)Pass an emergency amendment of the Public Defender's Act to extend the right of representation to bail reviews only. Period.

(2) Forget the task force to "study the Laws and Policies Relating to the Representation of Indigent Criminal Defendants by the Office of the Public Defender" that will just produce a gaggle of generalizations. 

Instead, create a task force of local correctional agencies, the judiciary, prosecutors, police and the Office of the Public Defender and ask them very specific questions, with a deadline before the next session:

(a) How can we shorten the waiting time for bail reviews over weekends at no cost? (I can supply them with ideas if they have none.)

(b) How can we issue more citations with a process that is consistent with public safety, protects defendant rights, and ensures the integrity of the criminal history record system?

(c) What if any additional safeguards are needed to protect defendants and public safety at commissioner hearings?

Finally, the General Assembly needs its own ability to access and analyze criminal justice data. I once proposed an independent data center, and am doing so again, this time placed within the General Assembly.  This will give them some real context for their decisions, like how many bail reviews we actually need on weekends. 

The Judiciary and Executive Branches will hate it, because they like to control the data. That's why it would be perfect.

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