About 1,600 prisoners serving long sentences in Maryland will become eligible for early release in October 2017, just as the state does away with mandatory minimum prison time for newly convicted, nonviolent drug offenders.
No longer will a person convicted of possession with intent to distribute even a small amount of drugs face an automatic prison sentence of 10 years. And hundreds of nonviolent offenders who have been given severe penalties over the past three decades will be able to appeal to a judge to get out years ahead of schedule.
But the state’s decision to jettison mandatory minimum sentences almost did not happen.
The provision was not included in the sweeping criminal-justice legislation submitted to the General Assembly late last year, in part because of strong opposition from law enforcement and key Republicans.
It was added after two freshman lawmakers — a Democrat and a Republican — brokered a deal that also includes stricter penalties for certain violent crimes.
“No state has gone as far as Maryland in recent memory,” said Gregory Newburn, the director of state policy at Families Against Mandatory Minimums, a national advocacy group.
At the bill-signing last month, Gov. Larry Hogan (R) called the legislation “the largest, most comprehensive criminal-justice reform in Maryland in a generation.”
A national shift
The original focus of the Justice Reinvestment Act, suggested by Senate President Thomas V. Mike Miller Jr. (D-Calvert) and embraced by Hogan, was to figure out a way to reduce the state’s prison population and costs and help offenders reenter society.
Deliberations turned into a discussion about whether the state’s approach to crime, particularly to nonviolent drug offenders, was fair — and whether there was a better way to deal with those offenders, many of whom are drug users themselves.
“I think the message all across the country is you can’t jail your way out of the drug problems that people have,” said Paul DeWolfe, the head of the Maryland Office of the Public Defender and a member of a state panel that made recommendations about the legislation to the General Assembly. “It’s an enormous waste of resources.”
Efforts to reduce state prison populations have been embraced in red and blue states across the country in recent years, as policymakers shift their focus from long sentences — a remnant of the decades-old War on Drugs — to treatment.
“It’s a mix of fiscal realities and understanding what the research says,” said Ram Subramanian, who recently worked on a study about criminal justice reform at the Vera Institute of Justice. “It has brought about significant reform on the state level that we hope will be translated on the federal level at some point.”
Congress, too, has considered easing sentencing guidelines but so far has failed to act.
Last month, Iowa Gov. Terry Branstad (R) signed a bill that allows the state’s parole board to release nonviolent drug offenders who have served at least half their sentences. Oklahoma Gov. Mary Fallin (R) approved a measure that gives judges more discretion in the sentencing of nonviolent offenders.
In addition to the mandatory minimum repeal, Maryland’s Justice Reinvestment Act eliminates disparities in penalties for offenses involving crack and powder cocaine; makes it easier to have drug-possession and dozens of other convictions expunged; allows a judge to order a drug assessment for accused nonviolent drug offenders and requires the state to provide treatment; reduces the age for geriatric parole eligibility from 65 to 60; and offers drug offenders the same number of credits to reduce their sentences that are given to other nonviolent offenders.
Last-minute amendments to the bill increased the maximum sentence for second-degree murder from 30 years to 40 years, and boosted penalties for drug gangs and racketeering and for causing the death of a child as a result of child abuse.
Maryland should save at least $80.5 million over the next 10 years as a result of the changes, and reduce its prison population by 1,194 beds, researchers said. Those numbers do not include changes in prison population as a result of eliminating mandatory minimums, since judges will still be able to impose long sentences if they choose.
DeWolfe said his Public Defender’s office is in the process of combing through records to identify the 1,600 inmates who would be eligible to appeal their sentences when that portion of the bill takes effect in October 2017. Those prisoners will have until October 2018 to file a motion for a judge to consider a lesser sentence.
Making the deal
The legislation considered by the General Assembly this year was based on recommendations by the state’s Justice Reinvestment Coordinating Council, which spent months last year examining data from the Pew Charitable Trust about who is in prison, how long they are there and why they are there.
The data also looked at what changes could drive the state’s cost down.
The panel — which included defense lawyers, advocates, state prosecutors, lawmakers and law enforcement officials — could not agree on whether to include a mandatory minimums repeal in its proposal to the legislature.
Sen. Michael J. Hough (R-Frederick), who has worked on criminal justice reform in the past, told his colleagues on the commission that pushing too far could thwart the whole package. Others agreed.
“Don’t shoot for the moon,” Baltimore County State’s Attorney Scott Shellenberger (D) said during the debate. “Be happy we made it to California.”
But Del. Erek L. Barron (D-Prince George’s), an African American lawmaker and former prosecutor who also has done defense work, argued that it was imperative for the legislature to address the “blatantly failed policy” that has resulted in African Americans making up 87 percent of the inmates serving mandatory minimums.
The panel decided to include the mandatory minimum repeal, along with a proposal to increase penalties for second-degree murder, as “non-consensus items” in its report.
Mandatory minimums were not part of the Justice Reinvestment Act, which passed the Senate by a large margin. The Senate did, however, increase the penalty for second-degree murder.
In the House, The push for a mandatory-minimum repeal was stronger, fueled by lawmakers such as Barron, who called the mandatory sentences a “symbol of unfairness in the criminal justice system.”
Barron joined with Del. Brett R. Wilson (R-Washington County) to offer what many called the “Barron-Wilson amendment.” It added the repeal to the House bill, at the same time increasing the penalty for violent gang activity.
The freshman lawmakers had strong support from the 45-member Legislative Black Caucus, which declared it would not support the Justice Reinvestment Act unless the legislation included the repeal.
With the 90-day session drawing to a close, the House and Senate were at a standoff over the different versions of the bill. Christopher Shank, a top aide to Hogan who had chaired the Justice Reinvestment panel, tried to mediate, shuttling between groups of senators and delegates over a period of six hours one Saturday to iron out differences. Eventually, the two chambers agreed on a version in which both the repeal of mandatory minimums and the stiffer penalties for second-degree murder and violent gang activity survived.
Even skeptics such as Shellenberger, the Baltimore County prosecutor, who said the elimination of mandatory minimums will make it harder to reach plea deals, applauded the bill’s shifting of resources from incarceration to drug and mental health treatment.
“If we can get to the root of the problem and solve the problem, . . . maybe we have done the right thing for the future of the criminal justice system,” Shellenberger said.
Looking to jails
Almost as soon as Hogan signed the bill into law, the advocates who had push for it announced their next target: pretrial reform.
They said that one-third of Marylanders who are behind bars are in jails, rather than prisons, and they are urging the state to turn its attention to changes in how people are held before trial — including the bail system.
According to the Pretrial Justice Institute, defendants of color are given higher bail amounts and are detained more often than white defendants. The institute says that more than 60 percent of the people in jails across the country have not been convicted of a crime but are awaiting trial in jail because they cannot afford the cash bail.
“Our leaders have to keep in mind that the justice reinvestment effort only applies to prisoners,” said Toni Holness, the public policy counsel for the American Civil Liberties Union of Maryland. “There’s a huge chunk of our incarcerated population that has gone unaddressed.”
