Editor’s note: In conjunction with OSI-Baltimore’s forum series, The Burden of Bail, Audacious Ideas is pleased to feature a month-long blog series about pre-trial detention and bail reform. Over the next month, four experts will talk about what can be done to make our pre-trial justice system fair and efficient.
The Supreme Court has held that a person cannot be sentenced to even a single day in jail if they are convicted of a crime unless they are afforded representation at trial. Yet in far too many places in the country, and throughout all of Maryland, people are arrested and remanded into custody in a proceeding without the benefit of counsel. In Maryland, the proceedings are conducted by non-judicial commissioners, and are neither open to the public nor recorded.
In the DeWolfe v. Richmond case, the Maryland high court held that this practice violates Maryland’s Public Defender Act. But rather than tackle the problem by providing adequate funding for the Public Defender, the Maryland legislature recently passed a bill that eliminates the right to counsel at the first critical appearance before a commissioner who determines whether a person will be released or held in jail pending trial. To its credit, the legislature did allocate funds for the Public Defender to provide counsel at the first ensuing court appearance where the commissioner’s decision regarding bail will be reviewed.
The Federal Government and 42 states (it was 43 until the legislature took Maryland off that list) provide for appointment of counsel before, at, or just after the initial appearance. The revisions to the criminal justice system in Maryland will afford many defendants the right to counsel within 24 hours of their arrest, but many others may remain in custody for a number of days until they are given access to an attorney.
Even if only a small percentage of accused persons are deprived of liberty without counsel that is too many. The Constitution does not say that in most criminal prosecutions a defendant shall have the right to counsel, it states that in all criminal prosecutions the accused shall have the assistance of counsel.
Fortunately, the legislation also created a task force to study the problem. That task force must get to work immediately to develop proposals that will guarantee prompt access to counsel at the first appearance. Whether this will require funds for lawyers to attend the commissioner proceedings, or adoption of an entirely new procedure remains to be seen.
The National Association of Criminal Defense Lawyers (NACDL) believes that the Constitution requires that a state must provide a lawyer for the poor at any appearance in a criminal proceeding and is committed to securing this right in every American courtroom.
This piece is also posted on the National Association of Criminal Defense Lawyers’ site.