Delegate Tony McConkey's Official Blog

Compromise On Maryland Bail Hearings Soon

Maryland Bail Hearings Ruling Will Stretch State

By Bryan P. Sears, in Daily Record

Indications of how the state intends to treat the representation of defendants at initial Maryland bail hearings in criminal cases may come as early as Tuesday.

That’s when a state task force is scheduled to meet to discuss the issue, following a September Court of Appeals decision that threatens to cost the state millions of dollars — as much as $500 million over 10 years by some estimates.

The extra cost, against a backdrop of looming state budget shortfalls and tight local government budgets, has members of the task force scrambling for a solution.

“When you get down to the nitty-gritty, this is a nightmare,” said Baltimore County State’s Attorney Scott D. Shellenberger.

At the heart of the problem is the high court’s ruling that the Maryland Constitution requires that defendants in criminal cases have representation at judicial proceedings, including bail hearings. A procedural rule from the court implementing its decision is pending.

Michael Schatzow, an attorney for Venable LLP who argued at the high court for defendants’ right to counsel at initial bail hearings, said that any changes to the system in the wake of the decision will be related to implementation.

“Anything that repeals or retreats from the court’s pronouncement is something we’d be concerned about,” Schatzow said. “We are not amenable to any negotiation on that front.”

Del. Curt Anderson, D-Baltimore, said he and other members of the task force are keenly aware of Schatzow’s position.

“Every time a proposal is floated we all look down at [the defendants’ attorneys] to see what their reaction is, because we probably don’t want to do anything that is going to result in going back to court,” Anderson said.

Time for action

Anderson, Shellenberger and others agree on one thing: The price tag of adding 24-7 coverage at initial bail hearings by public defenders requires the General Assembly to act.

The cost of adding the public defenders alone has been estimated at between $25 million and $33 million. “Add in the cost of having prosecutors at those hearings and you automatically double that cost,” said Montgomery County State’s Attorney John McCarthy.

Throw in salaries for additional security, clerks and other staff and you could be talking $100 million, McCarthy said. And the cost of renovating court buildings to handle the extra workload could take the total to “$500 million over the first 10 years.”

“This creates funding issues for the state as well as local jurisdictions,” McCarthy said. “There’s going to be a battle royal about who is going to pay that bill — assuming that bill ever comes due.”

The state typically pays the costs of the public defender’s office, but local jurisdictions are responsible for funding prosecutors.

Over the last five years the state has reduced the amount of aid to local jurisdictions as it sought to balance its own budget. These cuts have caused local governments to reprioritize their own spending.

And the difficulties aren’t over.

State budget experts estimate that Maryland faces an $87 million budget shortfall in the current budget year, and a structural deficit of $500 million for the fiscal year 2015 budget.

And none of those estimates includes the costs of funding the court’s decision.

More justice, less expense

In Schatzow’s view, the constitutional requirement and the fiscal impediments create an opportunity to streamline the process and find cost savings.

“The task force is taking a more fundamental look at the process,” Schatzow said. “This could markedly improve our current system and provide more justice at less cost.”

Some possible changes that appear to be gaining support include moving initial bail hearings from the court commissioners to District Court judges, but Shellenberger said this could result in some arrestees being held for up to 24 hours before they get in front of a judge. Shellenberger said that would create delays he doesn’t currently have in Baltimore County.

“I don’t have people arrested for trespassing sitting in my detention center,” he said.

But others said the delay is minimal because of the normal processing that occurs after arrest.

Another strong contender is adoption of a risk-assessment tool to determine which defendants could be released on their own recognizance. Not everyone is a fan of this.

Anderson, the state delegate, said the assessment shown to the task force could result in black defendants being held while white defendants arrested for the same crimes are released.

“I personally didn’t like it because it only takes into account specific data that is in the system and doesn’t take into account things like the person having a full-time job or how long they’ve lived in Maryland,” Anderson said.

“It re-emphasizes race into the equation.”

Anderson also cast doubt on how successful such a tool would be. It is currently only in use in Kentucky.

Dorothy Lennig, director of the legal clinic at the House of Ruth, said the tool is not helpful in determining the risk factors in releasing persons arrested for domestic violence, sexual assault and driving under the influence.

“There’s no good data on the assessments of people arrested for those offenses, and those groups would have to removed,” Lennig said. “We’d have to find another way to deal with them.”

McCarthy, however, said the tool could be useful and believes it’s blind when it comes to race.

“This is similar to the assessment used in the juvenile system and no one complains about that,” McCarthy said.

Conflicting estimates

Not everyone agrees with the cost estimates.

“It’s not going to cost as much as people are predicting,” Schatzow said. “I don’t know where these costs come from.”

Schatzow said he completely disagreed with the $30 million estimate and added: “I don’t know how you get to $60 million and $100 million — that’s an absurd number, in my opinion.”

The Baltimore attorney said costs estimated by the Department of Legislative Services run in the $1.6 million range.

That figure comes from an analysis of a 1998 House bill that would have hired 27 attorneys and about 30 intake specialists to represent indigent defendants at bail hearings. Schatzow said higher costs than those in the 1998 analysis are part of “having a legal system that gives people rights in a civilized country.”

Schatzow said there would be additional savings from not incarcerating people who would otherwise end up in jail because they did not have an attorney during their hearing. Additionally, Schatzow said he doubted state’s attorneys around the state would see increased costs from sending prosecutors to initial bail hearings.

“They don’t do it now so why would they do it then?” Schatzow said.

A political gamble

McCarthy, for his part, said he has committed to the idea of having his office cover initial bail hearings. To do otherwise is a political gamble, the prosecutor said.

“I think we’re forced into an untenable position and the [public] would not be represented,” McCarthy said. His concern: that someone will be released on a low bail and commit a more serious crime.

“It could literally cost me my job,” McCarthy said. “I think that’s the political reality.”

McCarthy also acknowledges that there is a fiscal reality and that other prosecutors will have to make other choices.

Shellenberger, Baltimore County’s top prosecutor, said he would not be able to staff initial bail hearings in his county.

“I don’t have the resources to hire another 15 prosecutors,” Shellenberger said.

Baltimore County currently has the third highest number of arrests of any jurisdiction, and it has no centralized booking facility. Initial bail hearings by commissioners are done at one of three District Court houses located in Catonsville, Essex and Towson.

“I don’t have any thought that this county can handle paying another 15 prosecutors at the regular salary, much less a higher salary covering nights and weekends,” Shellenberger said. “I have no illusions that anyone here is handing me the money for an extra 15 prosecutors.”

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