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.