Daunting County Costs Forecasted From Bail Hearing Decision

At an Annapolis briefing yesterday, members learned that the potential cost impacts of a recent court case could carry over $100 million in new costs to both state and county budgets. Public Defenders (state-funded) and State’s Attorneys (county-funded state agencies) both estimate massive cost implications of the recent court requirement of legal representation at bail hearings.

As previously reported on Conduit Street, the recent Maryland Court of Appeals decision in DeWolfe v. Richmond held that indigent detainees have a right to representation for bail hearings or review before a District Court Commissioner or District Court Judge.  The holding poses potentially significant logistical and cost challenges to local law enforcement and correctional facilities, the Office of the Public Defender, State’s Attorneys, and the court system.  On January 26 the House Judiciary Committee held a 4-plus hour briefing on the issue.

District Court Commissioners, who determine the initial status of an arrestee, are active 24 hours a day/7 days a week, including holidays, at 41 sites across the State.  Bail hearings before a District Court judge, on the other hand, generally happen during the 5-day work week and during normal working hours.  A prisoner must be given a bail hearing during the next hearing session (which could be immediately if one is occurring at the moment).

The Public Defender’s Office was supportive of the Court’s decision but did state that the Office could not meet the requirements with current staffing and budget levels.  Citing reduced staff, high caseload levels, The Office estimated that it would need a deficiency request of $28 million for FY 2012 to hire panel attorneys to handle short-term compliance.  For long-term compliance, the Office estimated it would need 260 more attorneys (approximately 50% increase) plus support staff, information technology, and supplies.  The Office complimented the help of local correctional facilities in helping to develop a compliance plan.

Judiciary Chairman Joe Vallario noted that the State’s Attorneys must also have a presence.  Representatives from the State’s Attorneys Association confirmed his assessment.  While also supportive of the case holding, they put compliance costs at $83-$100 million for them, with a similar number for the Public Defender’s Office.  They proposed a statutory fix to the issue, with language that would require indigent representation before a judge but not before a District Court Commissioner (who are typically not attorneys).

Local law enforcement officers and correctional official testified about the local impact of the case holding, including potential backlogs at local jails and processing units.  Their concerns included:  (1) providing secure facilities for public defenders and state’s attorneys, modifying Commissioner Hearing Stations to accommodate additional people, providing additional officers and security, increasing the length of time the appearances take with the result of fewer cases being processed over the same time period, and for some counties having to build central processing facilities.
Advocates for the case holding argued that the Court would likely overturn a statutory fix to the holding on constitutional grounds of due process and instead suggested ways of reducing compliance costs.  They noted that similar legislation introduced in 2000 showed Maryland would save $4.5 million a year from having the additional representation as arrestees would be more often released on their own recognizance or low bail rather than remain incarcerated.
Delegate Michael Smigiel warned, “[The local jurisdictions] need to be preparing for this.  It is coming.”
Representatives from the courts indicated they are preparing changes to their rules of procedures and urged the General Assembly to review the challenge with all stakeholders because of the many underlying issues that need to be addressed.

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