“We cannot declare the Plaintiffs have a statutory right to counsel at bail hearings and, in the same breath, permit delay in the implementation of that important right and thereby countenance violations of it, even for a brief time,” concluded the Maryland Court of Appeals (the highest court in the state) on January 4, 2012 in DeWolfe v. Richmond. Because the state court’s right to counsel ruling was based on existing statutes – and thus state or federal constitutional issue did not need to be addressed – the state legislature scrambled in the immediate aftermath to amend the State Public Defender Act in order to stave off all of the increased associated costs (court, prosecution and defense) with providing representation at bail hearings and reviews. On May 22, 2012, Governor Martin O’Malley signed legislation requiring police to issue citations for many misdemeanor violations – rather than arresting and detaining alleged offenders – in hopes of decreasing the need for bail hearings altogether. During the same legislative session, the Office of the Public Defender received a $6.3 million increase to hire 68 new employees (including 34 lawyers).
Here is the synopsis of how it all came about….
DeWolfe v. Richmond
Following arrest, and before a prosecutor makes a decision about whether to pursue a case, three different types of proceedings generally occur: (a) a probable cause determination to decide if there is reasonable belief that a person has committed a crime; (b) a bail hearing; and (c) an arraignment where the person is formally charged. In Baltimore City, for example, the initial appearance for probable cause and bail is held before a judicial commissioner. As related in a February 29, 2012, Baltimore Sun opinion piece, these hearings “can take place at any time, day or night” before a commissioner “who is typically not a lawyer.”
These hearings, as detailed in DeWolfe v. Richmond, “take place in a ‘tiny narrow booth’ at the Central Booking Jail.” The hearings are not open to the public or recorded. “When commissioners ‘ask about residence, employment, family, community ties, prior record, and, frequently, the charges[,] …[a]rrestees are expected to answer. Most do, not knowing that the information may be recorded in a closed envelope for use against them by judges and prosecutors. They are not informed whether a prosecutor has ex parte contact with a commissioner.”
A bail review hearing does occur before a judge. However, the Maryland Court of Appeals concluded, “[t]hat a defendant might have bail reduced or eliminated by a District Court judge at a subsequent bail review hearing does not dispel or even mitigate the fact that, whenever a Commissioner determines to set bail, the defendant stands a good chance of losing his or her liberty, even if only for a brief time. Furthermore, the likelihood that the Commissioner will give full and fair consideration to all facts relevant to the bail determination can only be enhanced by the presence of counsel.” And, the Court argued, “[w]e cannot overlook … the evidence in record that the Commissioner’s initial bail decision often is not disturbed by the District Court judge bail review….Whenever the Commissioner’s bail decision is left standing, the defendant will remain incarcerated for weeks, if not many months, before trial.”
Because the Court of Appeals had no need to decide state or federal constitutional issues, the state Legislature scrambled in the immediate aftermath of the decision to deal with the resulting costs. Though they could have simply amended the State Public Defender statute to remove, in all or in parts, the sections the court relied upon in its ruling, it would have simply invited further litigation on state and federal constitutional grounds. For example, in Gideon v. Wainwright, 372 U.S. 335 (1963), the U.S. Supreme Court famously stated indigent defendants require “the guiding hand of counsel at every step in the proceedings against him.” And, in 2008 in Rothgery v. Gillespie County, Texas, 554 U.S. 191 (2008), the Court made clear that the right to counsel attaches “at the initial appearance before a judicial officer,” by whatever name that hearing is known in a given jurisdiction, but “generally the hearing at which ‘the magistrate informs the defendant of the charge in the complaint, and of various rights in further proceedings,’ and ‘determine[s] the conditions for pretrial release.’”
Thus, the Senate and House offered a more measured response. New legislation was signed into law in May 2012. The bill requires representation at bail hearings before a District Court or Circuit Court judge, but does not require representation at the initial appearance before a District Court commissioner. However, a defendant who is denied pretrial release by a commissioner must “immediately” be presented to a District Court Judge (if the Court is in session) or at the next session of court. Recognizing that a “defendant who is not represented at a bail proceeding must speak to secure his freedom and thereby risk self–incrimination and prejudice to rights,” the new legislation precludes all statements made by a non-counseled defendant before a District Court Commissioner at initial appearance from being “used as evidence against the defendant in a criminal proceeding or juvenile proceeding.”
Finding that the “[i]mplementation of the changes called for by the DeWolfe v. Richmond decision will be extremely costly at a time when the State is already struggling with revenue shortfalls,” the General Assembly sought to alter “the charging process for some misdemeanor crimes” in hopes of improving “ the current administration of justice while also preserving the rights of indigent defendants.” Specifically, police officers now must charge by citation rather than arrest the following: (a) sale of alcoholic beverage to a minor; (b) malicious destruction of property (under $500); (c) disturbing the peace or disorderly conduct; among others. Police may also issue citations for all misdemeanors with a maximum penalty of 90 days or less (with some exceptions) if “the officer reasonably believes that the failure to charge on a statement of charges will not pose a threat to public safety,” and “the defendant is not subject to arrest for another criminal charge arising out of the same incident.”
The Maryland General Assembly also sought to look for other ways to save costs in the future by statutorily creating a 26-member Task Force to study the adequacy and cost of State laws and policies, and make recommendations for improving, the indigent defense system and the District Court Commissioner and pretrial release systems. Notably, besides state actors (e.g., House of Delegates (2); the Senate (2); Attorney General; State Public Defender; among others), the Task Force also includes representatives of the Pretrial Justice Institute, the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, and the plaintiff’s legal team in DeWolfe v. Richmond, among others. A report is due to the Governor and House and Senate Judiciary Committees on or before November 1, 2013.
During the legislative session, the Office of the Public Defender worked collaboratively with the Governor, Legislature and Department of Budget & Management to increase staff to handle the increased workload brought on by the DeWolfe v. Richmond decisions and the subsequent legislative action. The result was a 7.4% increase in the OPD budget [from $85,177,441 in FY 2012 to nearly $91.5 million in FY2013(a $6.3 million increase)]. This has allowed the Office of the Public Defender to hire 34 new lawyers and 34 support staff. The new class of employees started work on June 1, 2012.