Heather Cobun//Daily Record Legal Affairs Writer//January 4, 2017
//Daily Record Legal Affairs Writer
//January 4, 2017
Maryland’s parole system for juvenile offenders sentenced to life in prison has “morphed” into one of executive clemency that does not comply with a series of recent Supreme Court rulings requiring such offenders be allowed a meaningful opportunity to prove they have matured and rehabilitated, opponents of the system argued Wednesday in federal court.
The ACLU of Maryland, on behalf of three named inmates and members of the Maryland Restorative Justice Initiative, is seeking a judicial declaration that the reticence of the state’s governors to approve parole recommendations for “juvenile lifers” has made life-with-parole sentences de facto life-without-parole sentences.
There are more than 200 juvenile offenders serving life sentences in Maryland who are now adults in prison. State law requires the governor’s approval to parole anyone who has served less than 25 years of a life sentence, but the plaintiffs say no juvenile lifer has been paroled in more than two decades.
The state moved to dismiss the case in July, arguing the plaintiffs received constitutional sentences. Recent Supreme Court cases have prohibited the imposition of life without the possibility of parole for crimes committed by juveniles except in rare cases, Assistant Attorney General Michael O. Doyle said Wednesday, while the plaintiffs have the possibility of parole.
But Barry J. Fleishman, arguing for the plaintiffs, said his clients’ sentences were life with parole “in name only” and asked U.S. District Judge Ellen L. Hollander to allow discovery and deny the state’s motion to dismiss.
“Because the words ‘with parole’ are in the sentence, they can’t even get into the courtroom? That can’t be right,” said Fleishman, a partner at Kilpatrick, Townsend, Stockton LLP in Washington D.C.
Hollander pushed Doyle on why the unfettered discretion of the governor to deny parole – even if it is recommended by the parole board – does not create an unconstitutional system.
“If the governor has the final say and there’s no standards that require him to consider (any factors), then how can you say that provides a meaningful opportunity?” she asked.
Doyle replied there is no reason to assume officials will not follow the law and properly exercise discretion.
“The court certainly can’t presume that Governor Hogan (or his predecessors were) refusing to consider granting parole simply because that’s what the plaintiffs allege,” he said.
New state regulations require the parole commission to consider the ways in which juveniles differ from adults when a juvenile lifer comes before them, according to Doyle. The regulations were in response to a Supreme Court decision last year that retroactively applied the prohibition against sentencing juvenile offenders to life without parole. But the plaintiffs called the regulations “hastily written” in response to the lawsuit.
ACLU attorney Sonia Kumar said the regulations do not provide details to convicts about how the determination whether to recommend parole is made or what happens when the recommendation makes it to the governor.
“That’s not parole, that’s clemency,” she said.
Hollander also addressed a recent ruling by the 4th U.S. Circuit Court of Appeals, which found unconstitutional the life-without-parole sentence of a juvenile offender in Virginia because the system only allowed lifers to apply for prison release at age 60.
“I think the spirit of Leblanc (v. Mathena)… seems to suggest that unconstrained discretion to decide (parole) was a problem,” she said.
Hollander asked what would remedy the alleged constitutional violation, suggesting the General Assembly could pass a law requiring the governor take certain factors into account, like the parole board. But the plaintiffs’ lawyers said that would not be enough.
“We have no confidence (the regulations) would be implemented successfully,” Fleishman said. “What we’re saying here is the whole system is flawed and it has been flawed for the last two decades.”
Court monitoring of the parole system would instill confidence, he added, but Hollander said the plaintiffs were straying beyond the breadth of the challenge before her, which she understood to be objections to the system’s function at the top.
“You don’t get to micromanage the parole system,” she said. “That’s a function of the state.”
Kumar said the plaintiffs want to “undo 20 years of policies” that shifted policies away from making parole a reasonable expectation for model prisoners.
“The system has atrophied,” she told Hollander.
Hollander did not say when she would announce her decision but asked attorneys to point her to additional case law for her review after their arguments.
The case is Maryland Restorative Justice Initiative et al. v. Gov. Larry Hogan et al., No. 1:16-cv-01021-ELH.i