Might new rules mean fewer Marylanders go to jail for shoplifting or smoking marijuana? Some say yes, in light of the recent Court of Appeals ruling granting all persons arrested the right to access to a lawyer before being jailed. Citing the high cost of providing poor people with public defenders immediately after an arrest (for example, at a bail hearing), some lawmakers say rewriting legislation to reduce penalties for various misdemeanors is the answer. Kojo explores the right to legal representation and the legislative battle in Annapolis.


  • Brian Frosh Maryland State Senator (D- Dist. 16- Montgomery County)


  • 13:06:43

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, an internationally recognized master of political satire returns to his Maryland roots. Cartoonist "Kal" Kevin Kallaugher of the, once again, Baltimore Sun, joins us in studio.

  • 13:07:16

    MR. KOJO NNAMDIBut first, why Maryland's lawmakers are scrambling to respond to a court ruling that means serious things from the state's judicial system. The highest court in Maryland recently ruled that all people have the right to a lawyer at bail hearings and at each stage of the legal process, a decision that could soon slap the state with a heavy price tag. Given that initial bail hearings take place around the clock, that prosecutors would have to attend and that security would be necessary.

  • 13:07:44

    MR. KOJO NNAMDISo now the general assembly is looking at ways to reduce stress on the state's legal system by sending fewer people to jail in the first place and handling more misdemeanors with citations. But Maryland's House of Delegates and state senate have offered competing solutions to solve the matter before the ruling officially goes into effect. Joining us now is the individual taking the lead in the Maryland Senate on this issue. Brian Frosh is a member of the Maryland Senate. He's a democrat from Montgomery County and he's the chair of the Senate Judiciary Committee. He joins us by telephone. Senator Frosh, thank you so much for welcoming -- for joining us.

  • 13:08:20

    SENATOR BRIAN FROSHHi. Thank you, Kojo. Thanks for having me.

  • 13:08:22

    NNAMDIBefore we get into the scramble that's taking place in Annapolis over this, it seems we need a little background because this was all set into motion by a recent ruling by Maryland's highest court, that essentially says that people need access to attorneys before they're booked into jail. What exactly did the court ruling say?

  • 13:08:42

    FROSHYou got it right, Kojo. Basically, our Court of Appeals said that somebody who is arrested has right to council before -- our first step in the judicial process is a judicial officer called a commissioner. So there's a hearing before the commissioner. And then after that if the person is not released he or she goes before a district court judge. And the court of appeals said you're entitled to a lawyer at both of those stages of the proceedings.

  • 13:09:16

    NNAMDIWhy are you working so hard to respond to that ruling?

  • 13:09:19

    FROSHWell, several reasons. The most salient is that it's very expensive. As you mentioned, these proceedings before the commissioners go on around the clock seven days a week. And the public defender estimates that it would cost them something like 28 million bucks to provide that representation. And state's attorneys say, well, you know, if they're going to be there we need to be there. So add another 28 million to the mix. You're talking a big hit, especially when the state is trying to close a billion dollar gap in our budget. So we're talking about spending an extra 50 or $60 million on this when we're trying to cut a billion dollars from other programs.

  • 13:10:09

    NNAMDIWhen is this court ruling supposed to go into effect for the state's judicial system? As I recall reading about it that was, like, yesterday, wasn't it?

  • 13:10:18

    FROSHThat's right. There was -- it's not clear precisely when the court will lift the stay of its mandate and require the ruling to go into effect. It could be as early as today. It might be on the 16th or it could be sometime after that. It's been postponed twice so far and it could be postponed again. We are hard at work on it in the general assembly to craft a response.

  • 13:10:49

    FROSHIt's important to note that the court did not say that counsel were required in these proceedings based on a reading of the Marylander U.S. Constitution. They said this is required under Maryland's Public Defender's Statute. And so we're addressing first the Public Defender's Statute, but we have a constitutional issue that looms.

  • 13:11:12

    NNAMDIThe constitutional issue being...

  • 13:11:14

    FROSHWell, you have a right to council under well established U.S. constitutional law. Gideon versus Wainwright was a decision that was handed down in the 1960s that said if you can't afford an attorney then the state will provide one for you. The U.S. Supreme Court rulings have said that you're entitled to council at all critical stages of a proceeding. And it's still somewhat murky as to whether the two stages where we have not provided council are critical stages or what.

  • 13:11:53

    NNAMDIJust for the benefit of our listening audience and, well, me can we go over exactly what those two stages are again?

  • 13:11:59

    FROSHYes. You get arrested -- let's not say you. Let's say I get arrested and I'm taken to the police station. And sometime after that, hopefully quickly, hopefully within a matter of a couple of hours, they take me before a district court commissioner. This is a non-lawyer and the commissioner system is a relic of a bygone era. It's 40 years old, but it's a vestige of the system that existed before we had a district court. But so you go before a non-lawyer, but a trained individual. And that person says, okay, Frosh, you know, you were arrested for...

  • 13:12:38


  • 13:12:39

    FROSH...yeah, shoplifting. I'm going to require that you post $10,000 bail or I'll release you on your personal recognizance. If I don't get released on personal recognizance and I can't make the $10,000 bail, I next go before a district court judge. And that happens usually the next day. But if I'm arrested on a Friday or even sometimes on a Thursday, I might not get to see a judge for several days. And again...

  • 13:13:11

    NNAMDIDuring that time, you're kept incarcerated...

  • 13:13:14


  • 13:13:14

    NNAMDI...during that time, you have no counsel.

  • 13:13:16

    FROSHCorrect. So I'm in jail, I'm waiting to see a district court judge. And I get before a district court judge and then the judge makes the same determination, well, I see the commissioner set bail at $10,000. I think you're a greater threat to society. I'm going to raise it to 25,000. Or, you know, you seem like a fine fellow to me. Go and I'll release you on your personal recognizance.

  • 13:13:42

    NNAMDIEither way, you still don't have a lawyer to make any argument for you.

  • 13:13:44

    FROSHThat's right, today you do not.

  • 13:13:47

    NNAMDIWhat are the key differences between the solution that you've offered in the senate and the one that your colleagues in the house passed last week?

  • 13:13:55

    FROSHWe're heading down very similar tracks at this point. We've been meeting since the decision was handed down to try to craft a solution because it has to be done quickly. So what we've done in the senate is we have amended the Public Defender's Statute so that you are not going to be entitled to an attorney at the commissioner's stage of the proceedings. There are all kinds of practical problems with providing counsel at that stage. First, the public defender can't tell who's eligible and who isn't eligible in the short time between somebody is arrested and then presented to a commissioner.

  • 13:14:44

    FROSHAnd second, in many of the venues around the state, you're talking about a commissioner being at the police station or somewhere in the jail where they don't have security for additional people to stand around. And so they're practical difficulties, but it's also very expensive because those proceedings, as you've mentioned and I have, they go on seven days a week 24 hours a day sometimes.

  • 13:15:13


  • 13:15:14

    FROSHSo we eliminate -- we say, okay, under the Public Defender Statute, you're not entitled to council there. You get it before a district court judge. We say you're entitled to get before a district court judge within 48 hours of the time that you've seen a commissioner. And that's the very straightforward response to the court of appeals decision. The part that is less straightforward, but I think key is the part you described at the beginning of the show, where we say, okay, we're going to take some less serious offenses and see if we can avoid having people get caught up in the system altogether.

  • 13:15:56

    FROSHSo if you're arrested for something that really is a very minor offense and carries either no jail time or jail time of 90 days or less, or simple possession of marijuana, the police officer will have discretion to give you a citation. He can or she can arrest you, take you down to the station, search you, book you, see if there are any outstanding warrants and then give you a citation, Which would say, okay, Frosh, you know, you were busted for shoplifting. Come back in three weeks or four weeks or six weeks for your trial.

  • 13:16:36

    NNAMDIAnd I guess that's one of the parts that is controversial. Allow me to ask our listeners their opinion of it. 800-433-8850 is the number to call. Do you think that police officers in the State of Maryland should be allowed to issue citations instead of taking people to jail for offenses that do not carry jail time or carry short jail terms, such as maybe shoplifting or possession of marijuana? 800-433-8850 or do you think that those people should be incarcerated before they go to trial?

  • 13:17:08

    NNAMDIAnd, well, I read this morning about concerns that some people in the law enforcement community have about that issue because they say that cops need to be able to lock up certain offenders and they don't want to be bound by citations for the sake of saving the state money. How would you respond, Senator Frosh?

  • 13:17:27

    FROSHWell, we've been meeting with law enforcement, both the prosecutors and the police around the state. And the prosecutors are onboard. Well, I say that. We met last night with representatives from the state's attorney's association and they like this approach. Some police like it, some still have reservations, but we're working to get their approval as well. And I think we're far down the road in getting there.

  • 13:17:59

    FROSHThe police have a great deal of discretion. If they think public safety is threatened in any way, they're to arrest the person. If they think the person's going to flee, they think the person won't show up for the trial, they arrest them, put them in jail, send them before a commissioner. But let me give you an example of how people get snagged by the system and can't get free.

  • 13:18:26

    FROSHWe were told during our hearings of a 67-year-old guy who was arrested for urinating in public. Not nice, but not necessarily a threat to public safety in general. He was arrested, taken before a commissioner and the commissioner thought he was doing the guy a favor. He said, okay, I'll release you on a $100 bond. The guy didn't have $100. He was in jail, of course. And he called his wife, but his wife had Alzheimer's and it was like, you know, dropping a rock into the ocean. No result. He had nobody else to call. He had kids, but they lived out of state and he couldn't make a long distance call.

  • 13:19:07

    FROSHSo this guy was in jail for weeks because, first, the commissioner, then the district court judge set bond at the paltry sum of $100. But it served no purpose. This guy was not a threat to public safety. He's in jail at public expense and at great expense and no way to get out until he finally got somebody -- somebody from the University of Maryland law clinic apparently interviewed him in the jail and said, we'll represent you, a law student.

  • 13:19:40

    FROSHAnd they went before the court and said, hey, wait a minute, he doesn't have the 100 bucks. Can you just get him out? He's served more time in jail than he probably would've been sentenced to in the first place if he'd been sentenced to jail. So, you know, we're talking about very serious (unintelligible) ...

  • 13:19:56

    NNAMDIBut how do you write the legislation in such a way that you can address the concerns of people like House Minority Leader Anthony O'Donnell, who says that he is not only concerned about how it might affect public safety, but quoting him here, "I have a big concern that this is going to open the floodgates of people walking for very serious, serious crimes"?

  • 13:20:19

    FROSHWell, he's talking about a different bill.

  • 13:20:21


  • 13:20:22

    FROSHThe House has a different bills sponsored, by the way, by a republican that has a similar regime for offenses that carry a three year sentence. It includes the provisions of the Senate bill that I described but it also says if you've been -- if you're charged with a crime that carries a serious jail time, like three years, you may be issued a citation in the discretion of the police officer. And it sets up certain conditions. But it's a much bigger bite than the one we're talking about in the Senate.

  • 13:21:00

    NNAMDIHere is Bill in Rockville, Md. Bill, you're on the air. Go ahead, please.

  • 13:21:05

    BILLHi, my question was just about what sort of training fee commissioners receive for initially making the bill determination and if that could be passed on to arresting officers and maybe in an abbreviated kind of form so that they would be able to make, I don't know, a more informed decision, I guess, or if they'd be any additional training that they would get if this bill became law?

  • 13:21:30

    NNAMDILet me have Senator Brian Frosh answer that. Senator Frosh?

  • 13:21:32

    FROSHYeah, I mean, the police officers have a pretty good idea -- I mean, you know, when they charge somebody with an offense, they know what the potential penalty is. And so, I mean, I don't think they need -- I may not understand the question, but I don't think they need additional training in order to carry out the provisions of our...

  • 13:21:55

    NNAMDII guess, what the caller's asking is what kind of training do commissioners get...

  • 13:21:58

    FROSHAh, okay.

  • 13:21:58

    NNAMDI...since you said there weren't lawyers.

  • 13:21:59

    FROSHYeah, the commissioners do get a lot of training. I mean, let me just say, if we were creating this system today, we would not create it. I would not think we would want to create it with the commissioner system. But it exists and it functions relatively efficiently and they release probably, I think, it's 40 some percent of the people on personal recognizance.

  • 13:22:24

    FROSHSo they do serve a useful function in separating some of the weed from the chaff. They get trained -- they'd not get lawyers, but they go through a training program. There is a very detailed manual that they use to determine the decisions that they make. They make other decisions besides bail, but for bail, they've got a list of criteria that they go down for each person who is presented to them.

  • 13:22:55

    NNAMDIOkay. Bill, thank you very much for your call. Senator Frosh, can we expect this issue to be resolved between House and Senate?

  • 13:23:05

    FROSHWell, if we're lucky, by the end of this week.

  • 13:23:07

    NNAMDIOkay, well, we'll be looking forward to seeing how it turns out. Senator Brian Frosh is a member of the Maryland Senate. He's a democrat from Montgomery County and he's chair of the Senate Judiciary Committee. Brian Frosh, thank you so much for joining us.

  • 13:23:19

    FROSHThanks for having me, Kojo.

  • 13:23:20

    NNAMDIWe're going to take a short break. When we come back, Kevin "Kal" Kallaugher is back at the Baltimore Sun. The international renowned cartoonist lives in Baltimore. So maybe that's appropriate. He joins us. I'm Kojo Nnamdi.

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