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Competing 80-plus-page bills before the Senate and House would require a cultural change in the way Marylanders view criminal justice, not as a tool of punishment for non-violent crime but as a recipe for treatment. (Maximilian Franz/The Daily Record)

Md.’s sweeping ‘Justice Reinvestment’ measure hotly debated

ANNAPOLIS – Competing 80-plus-page bills before the Senate and House would require a cultural change in the way Marylanders view criminal justice, not as a tool of punishment for non-violent crime but as a recipe for treatment.

The reform legislation, as amended by the Senate, has put Sen. Robert A. “Bobby” Zirkin, chair of the Judicial Proceedings Committee, at odds with Senate President Thomas V. Mike Miller Jr., an outspoken advocate of the so-called “justice reinvestment” effort in nearly two dozen other states.

Senate President Thomas V. Mike Miller.

Senate President Thomas V. Mike Miller.

Critics of the Senate’s approach – including the Legislative Black Caucus and the public defender’s office — are hoping the House of Delegates’ bill, now in committee, emerges closer to how the effort was originally proposed with the help of Pew Charitable Trusts, which promised nearly a quarter-billion dollars in savings over 10 years.

The Senate and House measures would order treatment rather than incarceration for drug-possession offenses. The bills would also remove mandatory minimum sentences for drug possession offenses and apply retroactively, freeing convicts who would have already served the adjusted sentences.

In addition, both bills would prevent non-violent criminals who commit technical violations of parole or probation, such as failing a drug test, from being ordered to serve long prison terms so long as they are not serial violators.

Specifically, judges could sentence a technical violator of probation to up to 15 days for a first offense, 30 days for a second offense and 45 days for a third offense. For a fourth offense, the judge can sentence the offender to serve out the remainder of his or her prison term.

‘Largest reform’

Sen. Michael J. Hough, R-Frederick and Carroll, praised the “justice reinvestment” proposals as “the largest reform of the criminal justice system in a generation.”

These proposals follow the recommendation of the state’s Justice Reinvestment Coordinating Council, comprised of legislators, prosecutors and public defenders. The panel met last year, in collaboration with Pew, to develop ways to reduce incarceration in Maryland — without reducing public safety – and with an eye toward cutting prison costs by about $247 million over 10 years.

The Senate, however, broke ranks from the recommendations in passing legislation last week – Senate Bill 1005 — that would give judges jurisdiction to cancel parole or probation if they conclude the technical violator presents a threat to public safety based on his or her history of violence.

The House Judiciary Committee is working on that chamber’s version of the measure. Del. Kathleen M. Dumais, D-Montgomery and the committee’s vice chair, said Friday she expects the panel to be finished with the bill by Wednesday and to have it before the House for a vote on Friday.

The Senate and House would then have about 10 days to hammer out their differences in the bills and vote on identical final versions by the General Assembly’s adjournment at 12 a.m. April 12.

If signed into law by the governor, it would go into effect on Oct. 1, 2017.

Senate bill’s approach

The Senate bill, which the chamber passed 46-0 last week, includes provisions that would dramatically expand the number of crimes eligible for expungement.

Sen. Robert A. ‘Bobby’ Zirkin, D-Baltimore County and chairman of the Senate Judicial Proceedings Committee, (The Daily Record / Maximilian Franz)

Sen. Robert A. ‘Bobby’ Zirkin, D-Baltimore County and chairman of the Senate Judicial Proceedings Committee. (The Daily Record / Maximilian Franz)

But other changes — increasing the penalty for second-degree murder from 30 to 40 years — rankled some.

Sen. Victor Ramirez, D-Prince George’s and a member of the Judicial Proceedings Committee, said legislators from his county as well as Montgomery County and Baltimore City did not have input on the bill in committee.

“The largest jurisdictions that are probably more directly affected by the bill should have been included, and it’s my hope that in the conference committee we are included,” Ramirez said.

Zirkin, whose Judicial Proceedings Committee drafted and approved the public-safety exception, called it an “eminently reasonable step” to permit judges to jail violent criminals.

“We’re not going to tie the judges’ hands that dramatically,” said Zirkin, D-Baltimore County. “I will never … vote for a bill that puts murderers and rapists back on the street.”

Zirkin said the bill as introduced — without the exception – sacrificed public safety for the promise of budget savings.

“You can’t dangle enough money in front of me to put someone in harm’s way for getting raped or killed,” Zirkin said. “I’m not going to do it.”

Pew in the middle

Zirkin specifically criticized Pew for advocating limitations on jail sentences for technical violations even when the violator has a history of violence.

Pew is “the think tank that is now apparently a lobbying wing,” Zirkin said.

The non-profit offers consulting and data analysis under a grant through the U.S. Department of Justice and worked over the summer with the state Justice Reinvestment Coordinating Council to develop the recommendations that evolved into the legislation now under consideration. Justice Reinvestment is an effort the organization has helped spearhead in more than 20 other states, building bipartisan consensus for the effort to reduce jail populations and potentially save states hundreds of millions of dollars.

But Pew has moved from consulting on the plan to active lobbying, hiring John Stierhoff of Venable LLP to advocate for the bill as introduced in both the Senate and House. A letter Pew sent to legislators outlined how changes to the bill made by Zirkin’s committee reduced the amount of potential savings to $37 million over 10 years — a reduction of more than $200 million over the bill as introduced.

 Black Legislative Caucus

The Senate bill has drawn support from prosecutors but scorn from the Black Legislative Caucus, which argues that the measure provides a loophole for judges to re-incarcerate minority criminals under the argument of “public safety,” and from the public defender’s office, which said a technical violation or parole or probation cannot be punished as a violent crime regardless of who committed it.

Sen. Joanne C. Benson

Sen. Joanne C. Benson, D-Prince George’s County. (Maryland State Archives)

Del. Erek L. Baron, D-Prince George’s and a caucus member, said “public safety” is “no standard” because “it could be virtually anything. We need to have something that is defined and recognizable.”

Sen. Joanne C. Benson, D-Prince George’s and a fellow caucus member, said the caucus is reviewing the bill because it would affect 70 percent of black men in Maryland.

Caucus members held a spirited closed-door meeting last but have declined to speak publicly about their concerns and did not raise issues as the bill was approved in preliminary and final votes in the Senate.

Maryland Public Defender Paul B. DeWolfe said the Senate bill’s allowance for judges to imprison probationers and parolees for technical, non-violent violations would undermine justice reinvestment’s goal of reducing incarceration and putting the money saved into drug-abuse and mental-health treatment programs.

“The limiting of penalties for technical violations is smart government,” DeWolfe said

“These are non-violent offenders,” he added. “It has nothing to do with reoffending or committing another crime.”

DeWolfe also defended Pew’s involvement in the process, saying the organization provided the council with “evidence-based” results showing lower costs and no increase in crime by reducing jail terms for technical violators of parole and probation.

But Baltimore County State’s Attorney Scott D. Shellenberger endorsed the public-safety provision and urged the House to “splash a little common sense in there” and include a similar provision in its bill, which remains pending in conference

“I want judges to use their good discretion when somebody’s safety is at risk,” Shellenberger said.

He, like Zirkin, criticized what he called Pew’s adherence to limiting jail sentences for technical violations despite the offender’s violent history.

“You can’t do everything by a matrix,” Shellenberger said.

Drug treatment

Broader praise has been given to provisions in the Senate and House bills that call for treatment rather than incarceration in cases of drug-possession offenses.

Hough, the senator, recalled losing his father to alcoholism and said treating rather than incarcerating drug-possession offenses is “a moral issue” in the handling of addiction

“We cannot incarcerate our way out of the problem,” Hough said.

Treatment, rather than incarceration, is a better way toward “working to restore broken lives and broken families,” he added

Shellenberger said the bill “more smartly invests money into treatment programs” for drug abuse and mental illness.

“We have not been winning those battles” with incarceration, he added.