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Justice Reinvestment Act result of major compromise, but work remains

Maryland Public Defender Paul B. DeWolfe praised the repeal of mandatory minimum sentences in drug cases as “a very strong step forward” in criminal justice. (File)

Maryland Public Defender Paul B. DeWolfe praised the repeal of mandatory minimum sentences in drug cases as “a very strong step forward” in criminal justice. (File)

Many of the far-reaching implications of the criminal justice overhaul known as the Justice Reinvestment Act are clear but legislators and stakeholders expect still more will come to light and need attention prior to the bill’s October 2017 enactment date.

The bill changes how non-violent drug offenders are treated in the criminal justice system – from first contact through parole and probation – and “moves the ball forward” in terms of common-sense criminal justice, according to Sen. Robert A. “Bobby” Zirkin, D-Baltimore County and chairman of the Senate Judicial Proceedings Committee.

“Everybody in the system is going to have to be reoriented to what we’re doing,” Zirkin said.

The bill provides guidance to the court to divert certain offenders to treatment programs rather than incarceration, eliminates mandatory minimum sentences for drug offenses except involving major dealers, and alters how parole and probation violations are addressed.

“Putting [a substance abuser] in jail doesn’t make sense when they don’t do anything but affect themselves,” Zirkin said.

The Department of Health and Mental Hygiene will be required to facilitate immediate treatment of a defendant under the bill, according to legislative policy analysts. But the department has argued there is insufficient treatment capacity among providers and accommodating individuals within a limited timeframe will be challenging.

The next step toward the bill’s implementation is learning what resources local jurisdictions have as well as their projected needs, according to Zirkin. The General Assembly worked with data from the Maryland Department of Public Safety and Correctional Services about state facilities but countless non-violent drug offenders are serving sentences at local detention centers.

The “gap analysis” of the needs of local jurisdictions will be a major issue in next year’s session, Zirkin said. Local governments, detention centers and health departments will have an opportunity to look at the bill’s language and communicate concerns prior to next year’s session, according to Del. Kathleen M. Dumais, D-Montgomery.

“We have some time to work through the kinks of implementation,” said Dumais, who served on the House-Senate conference committee for the bill.

Impact on Judiciary

Baltimore County State’s Attorney Scott D. Shellenberger, who provided input on the bill throughout the process, said part of the reason for delaying the effective date is to allow DPSCS to overhaul its procedures.

Baltimore County State’s Attorney Scott D. Shellenberger, who provided input on the bill throughout the process, said part of the reason for delaying the effective date is to allow DPSCS to overhaul its procedures. (FIle)

Baltimore County State’s Attorney Scott D. Shellenberger, who provided input on the bill throughout the process, said part of the reason for delaying the effective date is to allow DPSCS to overhaul its procedures. (FIle)

“It’s going to take some time to ramp this up,” he said.

The Judiciary will also be affected, according to Shellenberger. As part of eliminating mandatory minimums for drug offenses, the bill permits offenders sentenced before the bill’s effective date to seek resentencing, which will lead to hundreds of hearings throughout the state.

Both the Judiciary and prosecutors are concerned about being flooded with motions for modification of sentence as a result of the bill, Shellenberger said, and have no guidance yet for processing that kind of volume.

Maryland Public Defender Paul B. DeWolfe praised the repeal of mandatory minimum sentences in drug cases as “a very strong step forward” in criminal justice.

“It is a major reform because the state is looking at reducing mass incarceration,” he said, noting that up to 85 percent of inmates facing mandatory minimum sentences are black and indigent.

But DeWolfe said that pretrial justice reform – left unaddressed by lawmakers – remains the unfinished business of the state.

The bail system, for example, discriminates against indigent defendants, who cannot afford to pay for their pretrial release, he said.

“That’s what I would like to see the legislature turn to next year,” DeWolfe said.

Differences worked out

It took a great deal of compromise among legislators and involved agencies to get a final version of the bill completed and passed, including 13 hours the Saturday before the end of session to make final adjustments.

“Nobody in this process got everything that they wanted and that is the nature of a good compromise,” said Zirkin. “It would be impossible for legislation of this scope and magnitude to satisfy any group completely.”

The 80-plus-page bills that initially entered each chamber of the General Assembly had significant differences. The Senate version emerged with changes Zirkin said were based on public safety concerns.

“There were some proposals that came out of this summer’s workgroup that were very dangerous, and in the final analysis, the Senate, working hand-in-hand with Scott [Shellenberger] in particular and others, really made sure to eliminate and moderate the more dangerous proposals,” he said.

One of the original provisions of the bill created a sentencing scheme for technical violations of parole or probation requiring sentences of 15, 30 and 45 days for first, second and third violations, respectively. But sentencing caps upset the Judiciary and prosecutors because they lacked discretion for offenders with a history of violence, according to Zirkin. The Senate amended the bill to allow a judge to deviate from the caps.

According to Dumais, House members were then worried the caps would not be effective if judges could depart from them.

“We think these caps should be used,” she said.

The House subsequently added language creating a rebuttable presumption that the sentencing scheme should be imposed and requiring the judge to make a finding on the record.

Balanced approach

Shellenberger said he’s nervous about the system but appreciates that judges maintain discretion.

“I think everyone is concerned about the limitations on probation and parole revocations for what are called ‘technical violations,’” he said.

Zirkin was also critical of the administrative release provision of the original bill, which would have automatically paroled certain inmates after they serve 25 percent of their sentence but excluded crimes of violence.

The term “crime of violence” means a very specific list in the law, according to Zirkin, and does not include second-degree assault, human trafficking and involuntary manslaughter.

“It was a radical proposal that would have absolutely endangered public safety,” he said.

The Senate later agreed to allow administrative parole to apply to people charged with drug possession and theft who complied with recommendations based on a risk and needs assessment, according to Dumais.

The chambers also battled over eliminating mandatory minimum sentences while continuing to be tough on large-scale drug dealers. The House and Senate reached a compromise that folded in an anti-racketeering statute proposed by the governor’s Heroin and Opioid Task Force.

According to Shellenberger, prosecutors and law enforcement will be better equipped to coordinate with other agencies to pursue and charge high-level dealers.

“I think that Justice Reinvestment is presenting a very balanced approach,” he said. “I think there is something in there for many people to be happy about. I think there are things in there for many people to be concerned about. I think overall it is a very excellent product.”

Daily Record Legal Affairs writer Steve Lash contributed to this article

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