Lawmakers will consider tenants’ right to counsel, juvenile justice reform

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A pandemic-fueled economic freefall and nationwide protests calling for criminal justice reform have spurred Maryland legislators to examine ways to enhance legal representation for low-income residents facing eviction and to protect the rights of imprisoned or criminally charged youngsters this coming General Assembly session.

Lawmakers said they will push for legislation that would give financially strapped tenants a statutory right to counsel at eviction hearings. Funds for the free representation would be raised through an eight-fold increase in the filing fee landlords pay in district court eviction proceedings.

“I think there’s a lot of appetite for it,” Del. David Moon, D-Montgomery and a member of the House Judiciary Committee, said of a right to counsel for tenants facing eviction. “There sure seems like there’s a lot of momentum there.”

With regard to criminal justice, lawmakers will consider legislation to ensure accused juvenile offenders exercise their right to counsel and to prohibit juveniles charged as adults and convicted of a crime — including murder — from being sentenced to life in prison without the possibility of parole. These young convicts would be guaranteed a court hearing on release after serving 20 years.

Del. Vanessa E. Atterbeary, vice chair of the House Judiciary Committee, said merely telling youngsters they have the right to counsel is insufficient to safeguarding their privilege against self-incrimination.

“There’s no world in which a teenage could be interrogated and know what is happening,” said Atterbeary, D-Howard. “Often adults don’t.”

Eviction issues

The 2021 General Assembly session will open Jan. 13 amid concern for what Maryland Attorney General Brian E. Frosh said could be a “tsunami” of eviction proceedings as the economic downturn has made it nearly impossible for many Marylanders to pay their monthly rent.

Frosh said he will lobby legislators to raise the landlords’ filing fee in evictions from what he called an extraordinarily low $15 to the national average of about $120, adding the higher cost might discourage landlords from initiating eviction proceedings that have become too readily used against tenants.

“It’s so cheap and easy, you (the landlord) make the courts your debt collector,” Frosh said. A $120 fee, by contrast, would encourage landlords to “hold your fire, work with the tenant,” he added.

Though supportive of a right to counsel in evictions, the chairs of the Senate Judicial Proceedings and House Judiciary committees have declined to endorse a general right to counsel in civil litigation.

The General Assembly would not back the millions of dollars in state funding such a broad right would require, especially amid the economic tailspin and more pressing budgetary demands wrought by efforts to stanch the viral spread of COVID-19, said Sen. William C. “Will” Smith, D-Montgomery, and Del. Luke Clippinger, D-Baltimore City.

“I don’t know where you get that money,” Smith said.

However, legislation is expected to be introduced this session to raise the filing fees in civil proceedings in circuit and district court to help fund the hard-hit Maryland Legal Services Corp., which provides grants to organizations that represent low-income Marylanders in civil litigation.  The fee increases under consideration including a $20 boost in the circuit court fees, from $165 to $185, and a $6 boost in district court, where fees run about $50.

Susan Erlichman, MLSC’s executive director, said the corporation is headed toward a financial cliff and expects it will need $6 million in additional funds in fiscal year 2022, which begins July 1, to get to its pre-pandemic level of funding and not have to reduce grants.

MLSC will lobby lawmakers to increase the corporation’s share of abandoned property held by the state from $2 million to $8 million, which would make up the $6 million shortfall, Erlichman said.

Such property includes stocks, bonds, savings accounts, security deposits, contents of safe deposit boxes, insurance proceeds and other valuables reported to the Maryland comptroller’s office as unclaimed by banks and other financial institutions after three years.

“I am hopeful that we will have success this session because nobody wants to fall off a cliff,” Erlichman said. “It’s a challenging time for everyone right now. I just want to make sure we meet the need.”

 ‘George Floyd effect’

The 90-day legislative session also opens against the backdrop of nationwide protests prompted by the May 25 death of George Floyd, an unarmed Black man, at the knee of a Minneapolis police officer. While they have focused attention on police reform, the protests have also raised concerns about how people – including juveniles and particularly minorities — are treated in the criminal justice system.

“Sadly, I think there is legitimacy to the term ‘George Floyd effect,’” Sen. Jill P. Carter said, referring to the phenomenon of an untimely death spurring legislative action. “The situation calls for Maryland to have a reckoning with its criminal justice policies.”

The proposed legislation to prohibit juveniles from being sentenced to life without the possibility of parole follows Supreme Court decisions in the past 10 years holding that such a mandatory sentence for a young offender violates the constitutional prohibition on cruel and unusual punishment except in the cases of murder.

“We’ve been in violation of the Supreme Court standard for years,” said Carter, D-Baltimore city and a member of the Senate Judicial Proceedings Committee.  “That’s why it (the legislation) is so important.”

The bill, which would make no exception for murder, would guarantee that those convicted as a juvenile would get a court hearing after serving 20 years. The judge would consider “the diminished culpability of a juvenile as compared to an adult, including an inability to fully appreciate risks and consequences” and decide whether the individual presents a danger to the public in light of demonstrated “maturity, rehabilitation and fitness” while in prison. The victims of their crimes or their family members would be permitted to testify at the hearing.

The General Assembly will also consider a measure to prohibit juveniles from being charged with felony-murder because naïve youngsters while “hanging with friends or to be cool” often get into situations of which they have no knowledge, understanding or ability to stop, such as a killing by an acquaintance, Carter said.