A recently introduced proposal from the Maryland Judicial Conference, HB 537, would overhaul the pre-trial confinement and bail system by altering the role of judges and district court commissioners during the initial appearance of a person following an arrest. This bill is among many proposals introduced to seek a resolution or accommodation to the recent court case requiring legal representation at bail hearings. The bill has been scheduled for its public hearing on February 25.
Currently after an arrest a person is taken to a district court commissioner, who will determine if there is probable cause to charge the person. The district court commissioner also functions to make sure that a person understands the potential charges and penalties; the rights and responsibilities of retaining an attorney or of requesting a public defender if one does not have the money for an attorney; whether one should be detained or released on their own recognizance; and finally whether bail should be set. The commissioners are often available anytime day or night for this purpose.
Following an appearance before the district court commissioner, if it is found that probable cause exists for the charge, a person has the right within 10 days to request a preliminary hearing before the judge where a person has the right to hear the evidence against them and to cross examine the State’s witness. If a person had requested a public defender or retained an attorney, the attorney would represent the person at this hearing in front of the judge.
As previously reported in Conduit Street, in 2012 the Maryland Court of Appeals held that under the Maryland Constitution a public defender or attorney representation was required to be offered at each step of the process including the initial appearance before the district court commissioner and not just at the preliminary hearing in front of the judge. HB 537, which is backed by the Maryland Judicial Conference attempts to rework the hearing system to comply with the ruling but also extends beyond that to change the process in ways that can be costly or difficult for parties other than the judiciary.
The biggest change under HB 537, is that the two-step process of an appearance before a commissioner and preliminary hearing would be condensed into one:
- Within 24 hours of an arrest a person would be taken to a hearing in front of a judge during normal court hours.
- If more than 24 hours would pass before a person could appear before a judge (weekends and holidays), a person would appear before a district court commissioner.
- In either case, a public defender or attorney must be available if the person requests one. And if the person requests representation, the State’s attorney would also have an attorney present.
The proposed changes are problematic to local jurisdictions for a number of reasons:
- Since the judges would only hold hearings during regular court business hours (and not on weekends or holidays), following an arrest that occurs after hours detention centers would have to hold the individuals until they can come before the judge. Most facilities are not equipped with such holding areas as under the current process a person is brought to a commissioner following an arrest at any time of day, and is often let go on their own recognizance or bail without having to stay in the detention facilities overnight. In most jurisdictions the detention facilities would need to be built or renovated to accommodate more individuals, and additional staff and security procedures would have to be put into place to watch over these individuals. This would be a costly undertaking for the county owned centers.
- Initial meetings with court commissioners are often held in narrow booths with just the commissioner and the individual being detained either meeting in person or by video stream. These facilities would have to be renovated to accommodate the public defender and the state’s attorney should the individual want representation. Both the costs of the renovation and the State’s attorney would be borne by local jurisdictions.
- While HB 537 allows for expanding video conferencing capabilities for the hearings so that a judge need not be physically present at every detention center, but that does not alleviate the local law enforcement and corrections staff and operational costs of holding the individuals for longer time frames, renovating the facilities, or the costs of public defender representation or State Attorney presence.
Although the court of appeals ruling to require the option for attorney representation at the initial bail hearing must be complied with, HB 537 goes far past that requirement with significant and costly effects on local governments.