2002 FINAL STATE
LEGISLATIVE PROGRAM

MIDDLE RANGE ISSUE

SUMMARY: One of the chronic problems in the detention facilities of some jurisdictions is the number of inmates who have been incarcerated for relatively minor offenses because they were unable to pay bail. In many of the cases, the defendants are released with no punishment other than time served, but their incarceration has deprived the jurisdiction of valuable jail space that could have been used to house those accused of more serious crimes.  Often defendants lose jobs and suffer significant personal difficulties during and after even a brief detention, consequences that may increase the likelihood of lawbreaking by these individuals in the future.

The Commission on the Future of Maryland Courts (CFMC) reviewed this situation during its tenure (1995-1996) and recommended involvement in criminal cases by defense counsel soon after arrest as a means of resolving many of these cases earlier in the process. The Commission’s Report states:

"Lack of complete discovery frustrates the early resolution of cases. Plea agreements are fostered when the defense is able to assess with confidence the strengths and weaknesses of the State’s case. Defense disclosure of pertinent information within the limits of privilege and confidentiality likewise allows the State to better evaluate its case and sentencing options.

"The State, defense, and detention centers also should be encouraged to collaborate to develop methods to facilitate attorney/client contacts, early status conferences and convenient access to treatment evaluators and providers. Emerging communication technologies should assist in this area. Special attention and accommodations should be made by the courts, prosecution and detention facilities to increase early participation by the defense bar."

Following the publication of the Final Report of the Commission on the Future of Maryland Courts, the MSBA Section of Correctional Reform began the process of drafting legislation and finding legislative sponsorship to enact the Commission’s recommendation on early involvement of defense counsel into law. As part of its campaign, the Section requested the MSBA Board of Governors to endorse the concept of early involvement. The Board agreed to endorse the proposal and subsequently approved the CFMC’s recommendation on this issue.

The Section of Correctional Reform’s bill was filed in the 1998 General Assembly, but was defeated in the House Judiciary Committee.  In 1999, prospects for passage of the bill looked more favorable, but the switch of a key vote on the Senate Judicial Proceedings Committee doomed the legislation.  In spite of this defeat, the inclusion of funds in the State budget to support a pilot project in the Baltimore City system allowed the program to begin.  Results of this project produced strong evidence that this approach works, but despite these results and passing of legislation by the State Senate, the bill failed to come up for a vote in the House Judiciary Committee in the 2000 session.  In 2001, the House Judiciary Committee killed the bill primarily because the Governor failed to provide funding for the program in the FY 2002 State Budget.

MSBA 2002 POSITION: Support legislation to encourage earlier involvement of defense counsel in criminal cases, provided that the additional funding necessary for the Office of the Public Defender to establish a program to have counsel at bail review hearings of indigent defendants is available.

SAMPLE LEGISLATION:
Senate Bill 335, General Assembly of Maryland, 1999
House Bill 889, General Assembly of Maryland, 1999
Senate Bill 138, General Assembly of Maryland, 2000

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