Daily Record shines light on threat to due process for poor people

Today, the ACLU of Maryland is highlighting an article from the Maryland Daily Record that gives a much-needed spotlight on legislation moving quickly through the General Assembly that is an assault on the constitutional due process rights of the poor and minorities. House Bill 153 would deny the constitutional right to representation by the Office of the Public Defender to an indigent individual after the conclusion of the bail hearing, forcing the OPD to go through the unnecessary and wasteful process of re-qualifying someone. 


HB 153 runs afoul of constitutional requirements, as an individual is entitled to appointed counsel during any "critical stage" of the legal process. For those who are granted bail, this bill will compound the already difficult burdens on defendants to prove their income-eligibility by denying them representation as they await eligibility by the OPD. The need for counsel after bail hearings is especially acute in Maryland, where there are wide racial disparities as to who is arrested and detained.  Overall, the vast majority of these minority defendants are poor and require the assistance of public defenders. 


From the Daily Record: 

"Panel advances bill to limit right to public defender"

Published on April 4th

Written by: Steve Lash

ANNAPOLIS - Over the objection of the Maryland public defender and civil rights advocates, the full Senate will soon consider legislation that would require defendants to reapply for free legal assistance after they either post bond or are released on their own recognizance pending trial.

"I think the bill is unconstitutional," Maryland Public Defender Paul B. DeWolfe said Thursday. "It deprives an individual of the right to counsel."


The measure, House Bill 153, would essentially strip a defendant of his or her attorney after a bail hearing and insist they reapply for public defender assistance, DeWolfe said. The reapplication process is "unreasonable" and "duplicative" because the accused, to be provided a public defender, must already sign an affidavit of qualification prior to the bail hearing, he added.


Defendants at bail hearings have "been fully represented by an attorney and that attorney is taken away from them," DeWolfe said, adding that valuable time is lost when the accused must reapply for an attorney and that lawyer must get up to speed on the case.


"It punishes indigent defendants," he said.


But Del. Curt Anderson, the bill's chief sponsor, and other supporters say the reapplication requirement ensures the public defender's office is representing at trial only those defendants who qualify financially for the free legal aid.


HB 153, which the House passed 116-18 on Feb. 28, would require defendants represented by a public defender at a bail hearing to reapply for the free assistance if they were released on bond or their own recognizance. Defendants unable to post bond, and thus incarcerated, would be permitted to retain the public defender under the bill.


The measure is also opposed by the American Civil Liberties Union of Maryland, the Maryland State Conference of NAACP Branches, the National Association of Criminal Defense Lawyers, and individuals like Douglas Colbert, a professor at the University of Maryland Francis King Carey School of Law, a longtime advocate for the right to counsel at bail.


The bill "is not only a waste of both time and money, but a violation of individuals rights to counsel to end representation after bail hearings and force them to be re-qualified for counsel," Sara Love, public policy director of the ACLU of Maryland, said in a statement on Tuesday.


On Wednesday, the Senate Judicial Proceedings Committee approved the measure with an amendment that would allow the defendant to retain the public defender if an independent supervisor concludes at the bail hearing that the accused qualifies for continued assistance.


The committee's 8-2 vote for the bill sends it to the Senate floor. If the bill passes in its current form, a Senate-House conference committee would attempt to hammer out the differences between the measures, with the goal of having the two chambers pass a unified measure before the General Assembly adjourns at 12 a.m. Tuesday.


Anderson, a Baltimore Democrat, said defendants who have the financial wherewithal to post bond presumably do not qualify for public defender assistance, and defendants who have been released presumably have the time to reapply. Those who do not post bond and are in jail would not be denied the continued services of a public defender, he added.


Providing public defenders to defendant who might not qualify for the free legal aid "does burden the system," Anderson said Wednesday. "We're trying to relieve the burden."


The bill follows the General Assembly's enactment last year of legislation requiring the public defender to provide legal assistance for indigent defendants at bail hearings.


The legislation was enacted in response to the Maryland's high court's DeWolfe v. Richmond ruling in January 2012 that the state Public Defender Act requires legal representation even earlier in the legal process: when defendants are first hauled before district court commissioners at an initial bail hearing, which is generally held 24 hours before a circuit court judge holds the bail hearing at issue in the pending legislation.


The 2012 enactment, an amendment to the public defender law, also prohibits anything a defendant says at an initial bail hearing from being used against them at the subsequent hearing.

DeWolfe called the enactment "a very important step forward in the right to counsel," which the Court of Appeals annunciated in its Richmond decision.


The pending measure, by contrast, is "a huge step back from the spirit of the Richmond decision and the Richmond legislation," DeWolfe said. "It's a bad bill, it's bad policy."



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