Bryan P. Sears//September 18, 2019
//September 18, 2019
ANNAPOLIS — Gov. Larry Hogan Wednesday said he will ask the state chief administrative law judge to help develop a process to compensate five men who were incarcerated for crimes they did not commit.
Hogan made the announcement two weeks after nearly four dozen lawmakers sent a letter to the governor and the Board of Public Works asking the panel to resolve the petitions. Hogan provided few details of what the proposed memorandum of understanding with the Office of Administrative Hearings would entail but said he hoped it would set an objective standard for compensation in similar cases.
Hogan directed the attorney for the board to draw up a memorandum of understanding with the chief administrative law judge.
Hogan said he hoped such a process “will ensure individualized consideration of every one of those important cases so that those five innocent individuals can be compensated justly prior to the legislature taking final action.”
The five men — Jerome Johnson, Lamar Johnson, Walter Lomax, Clarence Shipley and Hubert James Williams — have petitioned the board under state law. In July, attorneys for four of the men sent a letter to the board asking for action.
The exonerees spent a combined 120 years in prison.
“All of them experienced pain and indignities while they were incarcerated,” said Hogan. “There’s no question that they deserve to be justly compensated as they work to rebuild their lives.”
But Hogan added that the Board of Public Works “clearly does not have the expertise, the capacity or the personnel to determine what those actual damages sustain by those individuals is.”
All three members of the board agreed that the men should be compensated. Some say there is a need for an objective formula to determine damages in current and future cases.
“My concern here is that we’re getting into areas where we’re trying to quantify and attach money figures to pain and suffering,” said Comptroller Peter Franchot. “I am completely on the side of these affected individuals and others that may come, but what we need here is an objective criteria that can be applied so that these folks don’t have to go through all sorts of legal hoops and things to get compensated. It needs to be, ‘OK, x-number of years served unfairly, you get y-amount money,’ and it’s a considerable amount of money.”
Franchot said the state “can do both. I think we can be fair and compassionate but also objective.”
The governor threw blame on the General Assembly, which has taken up the issue, including last session, but failed to pass a bill.
“These individuals should not have to wait for the legislature to finally act,” said Hogan.
“I think there’s enough political pressure on the legislature that when they come back in January they will act finally,” said Hogan. “I know they’ve been trying for a couple years, unsuccessfully, but I think that will make them get it done this time.”
Two weeks ago, Del. Shelly Hettleman, D-Baltimore County, and 40 other lawmakers sent a letter to the board calling for action to compensate the five men.
“It’s good news that the governor is moving ahead to redress the grievances of these five men.” said Hettleman. “I wish the (board) had acted today because it’s in their power to do so, but I’m glad the governor recognizes that there is no need to wait until the General Assembly reconvenes to move forward. I look forward to working with my colleagues during the legislative session to develop a process where others who have been wrongly incarcerated can be compensated.”
The law allows for the three-member board to set compensation for exonerees, but Hogan said the panel lacks the staff and expertise to establish payments in such cases.
Chief Administrative Law Judge Thomas Dewberry said his office has a phone meeting set up for Friday morning to go over details of what the MOU would entail.
“We’re always more than happy and welcome any work the governor, the Board of Public Works, the legislature, wants to give to us,” he said. “As far as a caseload, this would not impact us … We would be able to absorb these cases.”
Dewberry said his office received a request recently for sample MOU documents and details about the delegation of cases but Wednesday was the first time the board specifically reached out about compensation for exonerees.
Dewberry said the law allows him to enter agreements with government agencies like this one and it’s “not out of the ordinary. It could be down the line that with some legislation it could be set into statute that these cases would be referred to us automatically, but an MOU is just fine,” he said.
Of the issues to be discussed, Dewberry said, one will be what kind of decisions — proposed or final — the administrative law judges will be authorized to issue. A proposed decision would be appealable to the board while a final decision can be appealed to the circuit court.
Treasurer Nancy Kopp was on the Board of Public Works the last time similar petitions were made and said the panel, led by Republican Gov. Robert Ehrlich, did establish an annual reimbursement figure with increases for inflation. Kopp called the amount “arbitrary” but in line with what other states were doing at the time.
“We did it,” Kopp said. “It’s in the law. The law does say the Board of Public Works can do this and the Board of Public Works did do this.”
She said that amount would approach $75,000 per year per person in today’s dollars, including inflation since 2004.
“I would just urge us to move very rapidly to take care of these men who are in the community now but whose years in prison we can never restore — we took years not just money — while we are working on a great plan to account for all factors,” said Kopp. “They’re not getting any younger.”
Daily Record legal affairs reporter Heather Cobun contributed to this report.
Editor’s note: An earlier version of this story incorrectly stated that Hogan was asking the state Judiciary to draft the plan. He is requesting aid from the Office of Administrative Hearings.