Lawmakers Weigh Response To Appeals Court Bail Decision

Apr 7, 2014

An empty housing unit at the Montgomery County Correctional Facility in Clarksburg. The county's department of corrections says it's empty because their data-driven pre-trial release program holds fewer people waiting for their day in court.
Credit Christopher Connelly/WYPR

One of the thorniest issues members of the General Assembly have had to deal with this session is fielding a response to a controversial decision handed down by the Maryland Court of Appeals. With just hours left before the session, lawmakers have responded with a handful of smaller measures they think will satisfy the court. But the ruling has also spurred a debate about what can be done to reform Maryland’s bail system.

If you’re arrested in Harford County, you’re often brought here, to Central Booking – Maj. Tanya Jackson is in charge of the place.

“They’ll take away your shoes, take away your laces, they’ll put a tag on you so we know who you are,” Jackson says.

And they will get you ready to go in front of the district court commissioner for an initial bail decision. That commissioner is not a judge but an agent of the court, available 24 hours a day, and is charged with deciding will decide if you should be released on your own recognizance, or if you should be held for a bail review in front of a judge.

This is the step that has gotten Maryland in trouble. In a case called DeWolfe V Richmond, the state Court of Appeals ruled that arrestees who go in front of a commissioner have a constitutional right to legal representation – something they don’t get now until a judge reviews their bail decision.

The state’s top public defender, Paul DeWolfe – he’s the DeWolfe named in the case – says the ruling has huge ramifications for the state’s public defenders

“We would have to go from a five-day-a-week, eight-hour-a-day operation to 24 hours a day, 365 days a year,” DeWolfe says. “And there were approximately 177,000 hearings across the state that we were not covering that we would have to cover.”

To do that, the state would have to pay about $30 million a year to hire enough public defenders. All of which spurred a lot of attention by lawmakers who want to do something this session to prevent that.

But for bail reform advocates like Harford County Sheriff Jesse Bane, the Richmond decision offers a chance to fix a broken system. He says Maryland needs a better way to decide who gets out of jail before trial. “We have people sitting in jail who probably, with some type of supervision, would be worth letting them walk the streets and continue with their lives and not lose whatever services they had in place at the time they were arrested”

Bane says that over the 42 years he’s been a cop, the jailhouse population has changed. When he started in the field, jails held the worst of the worst who couldn’t be trusted out on the street. Now, “we’ve gone from that scenario to where the jail is a mental hospital, a treatment center, a hospital and it’s a homeless shelter.”

But lawmakers in Annapolis have been at loggerheads. Some think the Richmond decision was a mistake – even floated a constitutional amendment to overturn it. Others just want to avoid finding the money to pay for all those new public defenders.

Sen. Brian Frosh says we should dump the commissioner system to improve results and save the state money. “It ought to be based on science, it ought to be based on evidence.  It shouldn’t be based on just gut reactions.”

Frosh proposed a bill that replaces commissioners with a computerized assessment tool that crunches the numbers to calculate the risk that a defendant will not show up at trial. A number of other states use similar tools, he says

“The tool predicts with greater certainty than do human beings who are sitting there staring at the defendant,” Frosh says. “and saying my gut reaction is you’ll be okay or my gut reaction says you should be behind bars.

Del. Kathleen Dumais, D-Montgomery County, says the judiciary committee she vice-chairs decided to wait a couple years to come up with the best pre-trial risk assessment tool.
Credit Christopher Connelly/WYPR

Frosh’s bill passed the Senate, but it’s got a lot of critics.

“Our criminal justice system should not be thrown to a social science experiment. That’s irresponsible,” says Sen. Bobby Zirkin.

Zirkin says that while other states are using risk assessment tools, they only to help inform judges who make bail decisions.

House Judiciary Committee chairman Joe Vallario says taking pretrial release decisions out of the hands of commissioners would mean taking out of the judiciary. “I’m not very much into a pretrial determination by someone who’s not a part of the court system.”

But if lawmakers wanted to see how a data-based risk assessment tool could work – they don’t have to leave the state. They could go down to the Montgomery County Detention Center in Rockville. They’ve been using an assessment tool since 2007 to make recommendations to judges on defendants held after they’ve seen a commissioner.

They take into account a range of charges – the severity of your charge, previous failures to appear, prior convictions, age, if you’re homeless, if you’re drug addicted and if you’re gang-affiliated. “And we get a score, and that score will tell us whether this person should be detained or released or non-supervised release,” says Angela Talley, who runs pre-trial services for the county.

Talley says that judges now decide to release twice as many defendants as they used to before they had the risk assessments. Many are released with conditions that they get drug treatment or are supervised, but it means defendants can go to their jobs and get the social services they rely on.

“We’ve had solid numbers since we implemented this risk assessment tool,” Talley says. “Our failure to appear rate did not increase, our re-arrest rate did not increase, and we found that we are releasing more people into the community and people are complying with the conditions set by the judge.”

Another upside, Talley says, is that the 512 people currently out on pretrial release in Montgomery County are not in jail, which saves the county a bunch of money.

Down the road in Clarksburg, there’s a whole 64-person housing unit at Montgomery County Correctional that’s been left empty, which Talley says is largely because of the increase in pre-trial release. To open it up it would cost nearly half a million dollars a year for staffing alone, because it would have to be fully staffed, just for one inmate. Add to that the cost of health care, food, blankets and the possibility of needing to build more jails in the future, and she says it gets very expensive, very fast.

But back in Annapolis, things have reached an impasse. While the Senate was sold on Frosh’s bill to replace the commissioner system with a risk assessment tool, the House moved a different way.

Del. Kathleen Dumais introduced the house version of Frosh’s bill. She’s also vice chair of the House Judiciary Committee, where lawmakers decided to push back the implementation by two years to give time to study it.

“It’s really clear that in order to properly implement and select a risk assessment tool, you have to do it methodically and it really does take some time,” Dumais says.

She says a deal could still be struck before the clock runs out at midnight, but in the meantime, the General Assembly is relying now on a couple of stop-gap measures to answer the Richmond decision. That includes about $10 million for courts to use to draft private attorneys to represent defendants in front of commissioners, and a bill allowing police to issue summons to appear for minor offenses rather than booking offenders through the system.

The Court of Appeals will decide in June if the legislature’s done enough, or if the state will have to hire a lot more lawyers.