Maryland Legislators To Consider Bill Curtailing Constitutional Right To Counsel

Late last month, a bill was introduced in the Maryland General Assembly that would encourage defendants charged with crimes to waive their constitutional right to be represented by legal counsel at initial bail hearings.

Under the current pre-trial release system in Maryland, initial bail hearings are presided over by District Court commissioners around the clock. Senate Bill 748, seeks to change that, limiting the availability of commissioners for bail hearings to regular business hours, from 9 a.m. to 5 p.m., unless the defendant waives his right to be represented by the public defender or has retained private counsel.

The Sixth Amendment to the United States Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defence.” In the case Gideon v. Wainwright, the U.S. Supreme Court interpreted this to mean that “lawyers in criminal courts are necessities, not luxuries,” holding that a defendant unable to retain counsel has the right to appointed counsel at the government’s expense, for situations in which the defendant faces imprisonment greater than one year.

The Bill was introduced in response to a recent ruling by the Maryland Court of Appeals in DeWolfe v. Richmond, in which the Court held that indigent defendants have a right to be represented by public defenders at bail hearings before commissioners. The Court clarified that the right to counsel applies “in any proceeding that may result in the defendant’s incarceration.” The Court of Appeals stayed implementation of the DeWolfe decision, while it considers the state’s appeal of Baltimore City Circuit Judge Alfred Nance’s January Order that attorneys be provided for indigent defendants at any time.

According to Senator Robert Zirkin, the Bill’s sponsor, “You have the right to counsel available to you. You may have to wait 12 hours (to see a commissioner). Or you can waive your right to counsel and do it quickly.” Zirkin claims that the Bill would save Maryland the almost $30 million that the Public Defender’s Office estimated it would cost to comply with the Court’s decision in DeWolfe, by not requiring counsel to be present at the 177,000 initial bail hearings each year.

Sen. Brian E. Frosh, has introduced a related measure, Senate Bill 973, which would create pretrial release programs that would determine if a defendant qualifies for release pending trial. Under Frosh’s program, defendants charged with violent crimes or sex crimes would not be eligible for pretrial release and would be taken before a judge, not a commissioner, to set bail. Zirkin has been critical of Frosh’s legislation, arguing that “It would be foolish to try to overhaul the criminal justice system as we know it in the next two months” before the General Assembly’s current session ends.

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience defending the Constitutional rights of individuals that have been charged with a crime. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.