Monday, September 30, 2013

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.


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).


  1. Every lawyer who has commented on this decision has said do away with the Commissioners and the problem is solved. It is sad, because over the years, I have worked with and come to know many fine Commissioners who are diligent and evaluate each defendant who appears in front of them. As I said in my last comment, the Central Booking Commissioners' Office and to an extent Pretrial Release are rudderless. They cower when the SAO insists on a high or no bail. The truth is defense lawyers try not appear at Central Booking because you forfeit your right to a Habeas in the Circuit Court. The Commissioner bail that is ostensibly set by the SAO carries with it a "presumption" of reasonableness when you get in front of the District Court judge. In Baltimore County, PTR gets input from both the State and defense. You also get a Habeas heard in 3 days, not 3 weeks. Pretrial in the City told me they do not discuss their recommendations with defense counsel. This came from the Central Booking PTR supervisor. They discussed it with the SAO. Anything beats the present system. Getting a fresh first time bail hearing in front of a Judge would be fairer than the present system. Instructing PTR that they are not employees of the SAO; and either preventing SAO input or telling them that they speak to both the State and the defense before addressing the Judge will go along way to "fixing" this broken system. In the counties Judges do bail reviews and try docket cases so they are not loafing. In Baltimore City, you might need two full-time judges to replace Commissioners. The time spent on the bench and the demands of the job are much more than you write. I spent a day with Judge Braverman, and he tried my first case with a 1/2 hour break for the clerk and State to eat, and then we started the second case. The next trial was waiting in the wings. This is not unusual. Unfortunately, your solution that is endorsed by many, will punish the good Commissioners by turning them into data retrieval clerks. The present system should never have been allowed to deteriorate.

    1. Gary, it is not about "punishing" commissioners. I think that when they release nearly half of arrestees they are doing their job. And as for the excessive bail recommendations you complain of, they do get judicial review. The system is better than in many states. Still, had judges exercised leadership long ago, it could be better. They issue rulings from on high, but do nothing to reform a bail system they make the rules for. As for loafing judges, some loaf and others don't, but they still have part-time jobs. Court observation and bench hours say the same thing. The honest ones admit it. But I am not making my proposal to punish judges or commissioners. It is the best answer to a dumb ruling. It will put all bail decisions into open court, the best place for them (and it will solve your complaint, too.) Let there be light...

  2. Sorry Page, I never saw your response. People who would have been released the same day or evening by the Commissioner will now spend more time in jail waiting for the bail review the next day before a judge.

  3. That's one the reasons the decision by the Court of Appeals was so dumb. It reflected a complete lack of understanding of the system. But since we are stuck with it now, let the judges hold the hearings without sticking it to the taxpayers any more.