Cleaning up the Court of Appeals' Mess

Maryland's Court of Appeals sure did make a mess of things.  It ruled that poor defendants must get free lawyers when they see commissioners to have their bail set.  I have written more than once about why--despite what sounds like a 'good idea'--this ruling is woefully misguided.

If this was a decision without an economic impact, that would be one thing.  However, if legislators try to fit this ruling into the current bail system, taxpayers will suffer huge financial consequences.

Right now District Court commissioners process defendants 24 hours a day, 365 days a week.  They do this to give defendants the chance to get out of jail as quickly as possible, either by releasing them on their promise to come to court or by setting bail.  Only those who can't make bail are then seen by judges on the next court day.

But if we now add free lawyers to the process, we have to staff every single booking center in the state with public defenders...24 hours a day, 365 days a year.  Yikes!  And the local jails will have to find room for these lawyers to meet with all arrested persons to find out if they are poor and then to attend the commissioner hearings. 

What an economic and logistical nightmare.  But as promised in my last blog, I have the solution. Maryland lawmakers should amend the law to make judges, and only judges, set bails.  

You see, the rules for processing arrested persons were made by the Court of Appeals.  It decided that defendants have to be seen within 24 hours.  (Many states use 48 or 72 hours, though I like 24 hours.)   And it decided that commissioners would do the dirty work of the court, sitting in jails and working around the clock.  Now that is has found a flaw in the system, it should solve the problem

If Maryland lawmakers revoked the power of commissioners to set bails, judges would have to do it.  And I guarantee they won't be sitting in little rooms in local jails 24-hours per day,  365 days a year.  So we won't  need to hire lawyers to do that, either.

Instead, bail determinations will be held in open court, either with the defendants present or through remote video hook-up.   The Public Defender's Office is already funded for bail representation, and its lawyers will be readily available.  No economic nightmare, and better representation for defendants.

And this plan has so many other advantages.  Critics have long complained, with justification, that commissioners are not equipped to do what they are charged with doing. Determine probable cause?  They are not trained lawyers. Advise defendants of their rights to representation?  The Court of Appeals has ruled that the advice that commissioners give to defendants doesn't legally count. Advice only counts when judges give it.  So let them give it. 

The private defense bar should like this plan.  It gives them a more realistic opportunity to represent clients at an earlier stage.  And prosecutors can more easily and cost-effectively provide their input when bail-setting is done in open court.

The district court judges will finally earn their pay.  Right now they are very cozy in their part-time jobs as glorified magistrates with little meaningful work to do.  They review bails, advise defendants of rights, postpone cases, and put people on probation.  Instead of getting away early every day for shopping or golf, they can set the bails.  

And they will then have the direct responsibility for evaluating and improving Maryland's bail system, one that currently--and will continue under the Court of Appeals ruling--to discriminate against the poor.  The commissioners who currently set the bails have little, if any, guidance on how to do it, and bails are wildly inconsistent.  Judges only "review" bails that defendants can't post, and they use the commissioner's bails as a starting point to go up or down.  If they had to set the baseline, they would have powerful motivation to devise a thoughtful and rational system that protects public safety while ensuring equal treatment for the poor. Instead of ordering other people to protect the rights of the poor, they would have to do it.

Will commissioners have to lose their jobs?  Nope.  Instead of setting the bails, they can be very useful in gathering information that will assist the judges in their decisions, such as gathering criminal records and verifying personal information.  They could prepare lists of defendants who they recommend be released without posting bail, for judges to handle first and quickly.

What's the downside?  Well, although this plan will save millions, agencies will still project their costs in a vacuum and grab for money, as usual.  But judges and public attorneys working at the district court level are already underutilized.  If the new system strains their resources, let them prove it with statistics, bench hours, and especially an independent audit.  

More fundamentally, it would be totally premature to award anyone any money at the outset because we don't know what the system will look like.  Once the General Assembly shifts the burden of setting bail to the judges, the Court of Appeals will have to make new rules.  Lawmakers must resist the temptation to make the rules themselves. They will just make a new mess.  Let the judges of Court of Appeals clean up the mess they made. 

And if, while they figure out how to do that, defendants are committed to jail by commissioners without having representation, those judges can do what they would do to anyone else who failed to obey their orders: they can hold themselves in contempt.

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Technical note for Maryland lawmakers:

1.  Amend Criminal Procedure 5-201 by adding a new (a)(1) that state: "Notwithstanding any other law or rule, only a judge of the District Court or a Circuit Court of Maryland may determine the conditions of pretrial release." Renumber the current (a)(1) to (a)(2) and eliminate the words "district court commissioner."

2.  Amend Courts & Judicial Proceedings to eliminate 2-607(2) and amend the language in (3).

The Sinkhole that is Criminal Justice Reform

If I were an ordinary citizen hearing about the recent Court of Appeals decision to require lawyers for the poor at commissioner hearings, I would think, hey, that sounds fair.  

But as a veteran of decades in the criminal justice system, I recognize it for what it is: the perfect illustration of why when it comes to reform, we only spend money and accomplish nothing.

To set the stage: Court commissioners decide within 24 hours after a person's arrest whether to release the person pending trial or set a bail. This process has historically resulted in the quick release of roughly half of those arrested. Those who can't post a bail go before a judge to have their bail reviewed, where they can be represented by the Public Defender's Office if they choose. The Court now says that free lawyers also must be available to the poor when commissioners make their decisions.

Here is what is wrong with the Court's ruling:

• It eliminates a disparity that never existed. Neither the poor nor the non-poor get lawyers at commissioner hearings because they happen too fast and at all hours of the night. (Only the very connected and well-off may be able to arrange it. But these are the people who always have and always will have more rights than everybody else. )  
• It will keep those who used to be released quickly in jail longer.  The process will inevitably slow down as defendants are interviewed by lawyers and as prosecutors join in for contested hearings.  
• It will discriminate against the non-poor.  If only the poor have the right to representation at commissioner hearings, what about the non-poor who can't get a lawyer on 24-hours notice? Or will, as a practical matter, we taxpayers have to pay for every single arrested person to have a free lawyer?
• It does not solve the problem that the advocates for the decision wanted to solve.  The lawsuit promised that lawyers at commissioner hearings would release more poor people and save on jail costs.  No, they won't.  Lawyers will have precious little information to offer commissioners so soon after an arrest. And arrested persons will be held longer waiting for a bail hearing.

So why will the State of Maryland have to pay many millions of dollars for a more cumbersome system that holds people in jail longer, solves an inequity that did not exist, and fails to solve the underlying problem of holding poor people in jail because they are poor?

Because this is how we do criminal justice reform in Maryland. Over and over and over.

Usually it starts with a 'good idea.'  This idea can come from an elected official blinded by enormous ego and ambition--like Martin O'Malley--or it can come from a zealot blinded by ego and ideology, as in Doug Colbert of the University of Maryland law school, the man behind the lawsuit.  In either case, the 'good idea' comes first, and justifications are mustered up afterward, usually without regard for facts.

For example, Colbert is well-known within criminal justice circles for distorting and misrepresenting facts and conducting biased studies that always support his thesis.  Heck, the man is so blinded that he used a drug dealer as his primary example of a system that discriminates against the poor.  This drug dealer--which he failed to tell judges in his briefs--immediately posted a hefty bail after his commissioner hearing and hired a private attorney to represent him. That sums ups Colbert's advocacy in a nutshell.  He can't be trusted.

So the 'good idea' will lack unbiased empirical data to support it. But because it sounds good --lawyers for the poor!--it eventually, with persistence, gains traction.  A good politician can get the legislature to bite, or a persistent zealot can get a skilled lawyer to take the case to the courts, like the Venable attorneys who helped Colbert (and who mostly practice law in a comfortable world far away from Maryland's jails and district courthouses.)

And when a case reaches Maryland's Court of Appeals, it's anybody's guess what will happen.  The first time it heard the case, the Court said that Maryland lawmakers intended to provide free lawyers at commissioner hearings.  When the General Assembly cleared that up by passing a new law, four judges then said that Maryland's Constitution required free lawyers, while three said it didn't.  Of course, the constitution was written before commissioner hearings existed, so the right had to be read into the constitution. And the four judges made sure to read it into Maryland's constitution, because it doesn't exist under the U.S. Constitution.   

The judge who wrote the decision was John C. Eldridge.  Here's how good Eldridge is at interpreting Maryland's constitution:  it plainly and clearly says that an elected member of Maryland's legislature must have "resided" in his district for at least six months prior to his election.  Eldridge wrote that the member only had to intend to reside in his district.  Any little pretense associated with that intent was good enough, even if the senator or delegate went home to his wife every night in another county.  I thought we were rid of Eldridge and his interpretation deficiencies, as well as the political judge Robert Bell, but both came back out of retirement to haunt the state with this decision.  

What makes bad judicial decisions worse than bad laws passed by elected officials is that judges have no accountability to citizens. They sit smugly and arrogantly on top of the hill, above all practical considerations like economic consequences, when in fact they are politically and ideologically influenced like anyone else.

But I have a solution for the mess they have just made.  A just and practical solution that will save taxpayers millions.  Not only that, it will clear a path to the real fix for the problem of locking up the poor because they are poor: bail reform.

Stay tuned.  

Ignoring O'Malley on Crime

I knew O'Malley planned to attend September's Baltimore's Criminal Justice Coordinating Council (CJCC) meeting after he crashed their meeting in July.  Both times he hoped to get headlines for himself about the city's escalating murder rate, and both times--at least at first--he failed.  

The Baltimore Sun apparently didn't attend the July meeting, because its reporters had to read the minutes to find out what he said.   That's how relevant the CJCC is to criminal justice.

But the Sun didn't bite after the September 11th meeting, either.  Instead it led with a story about his promise to clear the backlog of gun registration background checks, a duty performed by O'Malley's state police. Good for the Sun, I thought.  Focus on his accountability as governor.  No need to post a blog.  

But a week later the Sun gave in, belatedly trumpeting O'Malley's prescription for Baltimore's murder rate, which sounds a lot like his prescription when he became mayor: arrest, arrest, arrest.  The story was nuanced, and strove for balance, but O'Malley got the headline he craved.

O'Malley, as I have written before, likes to take credit for any criminal justice advancements. His promise for 'zero tolerance' in Baltimore shot him onto the political fast track, electing him mayor.  Now that he is an angling to be president, he is returning to his roots by congratulating himself on his crime record, while simultaneously and shrewdly distancing himself from the current city regime.  

But let his record on criminal justice as mayor be clear: through several poor hires and micromanagement, he denuded the police department of experienced leadership, a blow from which it has yet to recover.  He invited a major civil rights lawsuit and many private ones that cost the city dearly.  And the most significant and sustained drop in murders came after he left the city, and after the arrest practices he instituted were abandoned.

And what did he do as governor?  Well, he ordered the probation and parole department, which is under state authority, to focus resources on violent offenders.  That wasn't an original idea with him, but still a good one.  But what impact has it had?  Has he had anyone--by which I mean an independent, professional person--study the results of the program for its effectiveness?  

We do know that his management of the state correctional system has been atrocious, most conspicuously, allowing a gang leader to operate out of Baltimore city's jail while fathering multiple children with correctional officers.  What accountability did he take for that?  Zero.  He merely threw the jail's security chief to the wolves, retaining the senior leadership that created the culture which allowed such blatant corruption.  But he wants to lecture the city about crime.  

I remember the first time I saw Martin O'Malley at a CJCC meeting, when he was a city councilman. Then-delegate Peter Franchot was there, doing what O'Malley was to do more ostentatiously later: grandstand at the CJCC to promote his career.  O'Malley introduced himself as a councilman from Baltimore city "out of Montgomery County" (where Franchot was from and O'Malley grew up.)  He never missed an opportunity to promote himself, even then.

Then O'Malley proceeded to announce one of his solutions to city criminal justice problems. The concept was fine, and progressive, but the mechanism was totally flawed and promised too much of a panacea.  That's O'M's m.o.: take a little bit of knowledge and make himself dangerous.

He had the solutions for everything, except he didn't, and he wouldn't listen to those who knew more in his rush to push his political career.  He bullied to get his way, and when he failed he still claimed victory through sheer chutzpah and lack of opposition.  O'Malley's forays into criminal justice were always about getting himself to the next office.  And nothing has changed now.  

So when O'Malley speaks on crime, don't listen.