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Legislators pass criminal justice reforms but not right to counsel

House Judiciary Committee Vice Chair Vanessa E. Atterbeary says that George Floyd’s slaying accelerated Maryland’s move toward law enforcement reform but did not initiate it. (The Daily Record/Bryan P. Sears)

House Judiciary Committee Vice Chair Vanessa E. Atterbeary says that George Floyd’s slaying accelerated Maryland’s move toward law enforcement reform but did not initiate it. (The Daily Record/Bryan P. Sears)

Spurred by the video-recorded slaying of an unarmed Black man and a global pandemic, a reform-minded 2021 General Assembly passed legislation on police and parole but fell short in efforts to provide low income tenants a right to counsel in eviction proceedings and having landlords underwrite the legal representation.

In the session’s waning days, the Democratic-led legislature overrode Gov. Larry Hogan’s veto to enact police reform law intended to curtail excessive force, limit no-knock warrants and make officer discipline subject to greater civilian oversight.

Over the Republican governor’s objection, the General Assembly also enacted a law prohibiting juveniles from being sentenced to life in prison without the possibility of parole.

And awaiting Hogan’s signature – but likely his veto — is a bill to strip him and future governors of the final say in parole decisions for inmates sentenced to life in prison with the possibility of parole. Under the bill, the appointed Parole Commission would make the final decision regarding parole and not simply make a recommendation to the governor.

Parole would be granted if six of the panel’s 10 members vote for approval.

Accompanying the General Assembly’s reform efforts were the emotional reverberations of the Memorial Day death of George Floyd at the knee of a Minneapolis police officer, which was caught on video and sparked nationwide protests.

House Judiciary Committee Vice Chair Vanessa E. Atterbeary said Tuesday that Floyd’s slaying accelerated Maryland’s move toward law enforcement reform but did not initiate it.

Legislation governing the police use of force, removing governors from the parole process and prohibiting juveniles from being sentenced to life without parole have been proposed in past General Assembly sessions, albeit with much less attention, she said.

“It (Floyd’s death) definitely made it happen quicker,” Atterbeary, D-Howard, said of reform. “It is an emotional issue. At the end of the day, our job is to make policy.”

But Sen. Robert Cassilly said the legislature failed to channel its justifiable anger at Floyd’s death into legislation that respects police officers and the split-second decisions they must make regarding the use of force.

“I’m not saying people shouldn’t be emotional,” said Cassilly, R-Harford.

“It’s our job as legislators to translate that into good public policy,” he added. “(But) we just carried the emotion onto the floor and it became anti-police. Emotion isn’t supposed to be the public policy; it’s supposed to inspire the public policy.”

Partisan disagreements

Senate Judicial Proceedings Committee Chair William C. “Will” Smith Jr. acknowledged that the “convulsions” spurred by Floyd’s slaying drove the effort toward police reform legislation but said the legislators contained their emotions.

“Our job is to sift through that (emotion) and come up with a practical solution, and I think we did that,” said Smith, D-Montgomery. “I think we met that balance.”

Sen. Michael J. Hough, R-Frederick and Carroll, disagreed.

Hough said the legislative session began in January with bipartisanship on police reform in the Judicial Proceedings Committee, on which he serves. However, the debate over reform was “hijacked” by more partisan, “pro-violent criminal, anti-police” proposals in the House.

“The end product is bad,” Hough said, citing what he called its undefined use-of-force standard for police. “There was an opportunity to work together.”

The police reform law permits police to use lethal force only if “necessary” to save lives or prevent serious injury, a necessity standard more stringent than the old one that permitted deadly force if it is objectively reasonable under the circumstances. Under the new law, less-than-deadly force must be necessary and proportional to the threat posed.

The law also permits no-knock warrants to be issued only with the approval of the local police chief and state’s attorney, in addition to the judge. No-knock warrants can only be executed between 8 a.m. and 7 p.m., except in exigent circumstances.

The law also permits public access to completed internal police investigations, including those inquiries that find the complaints against the officer unsubstantiated. Under the measure, each police department’s custodian of the requested documents retains discretion under the Maryland Public Information Act to deny the information request if disclosure would cause an unwarranted invasion of personal privacy, interfere with an investigation, endanger a life or reveal a confidential source.

The new law also reduces the strong internal protections for police in disciplinary proceedings by placing private citizens on charging boards and giving them greater say in bringing administrative charges and meting out sanctions on wayward officers.

The prohibition on life sentences without the possibility of parole for crimes committed by those under age 18 is an affirmation of the principle that  young offenders are not beyond redemption given time for maturity, remorse and rehabilitation, Atterbeary said.

Under the new law, the most severe sentence for a crime committed by someone under 18 is life in prison with the possibility of parole after serving 20 years. The convict could then petition the court for parole, which could be granted based on a judicial finding that the heinousness of the offense has been outweighed by the individual’s personal growth and the interests of justice.

“We are not throwing these juveniles’ lives away,” Atterbeary said.

But Cassilly said during Senate debate that some crimes are so heinous, such as mass murder, that a sentence of life without the possibility of parole is appropriate regardless of the criminal’s age.

The law stripping governors of the final say in parole decisions ensure that inmates sentenced to life have a meaningful opportunity for parole by obviating the political risk a governor would run by releasing a convicted killer. Politicians’ fear of making a career-killing move makes denial of parole virtually certain in all cases, the sponsors said.

But Hogan’s office, in a letter opposing the bill in February, stated that SB202 would improperly remove the state’s top elected official — who is directly accountable to Maryland residents — from the ultimate decision of whether to release a convicted killer.

Right to counsel

In contrast to the success of criminal justice reform bills, legislation to give low-income tenants a right to counsel in civil eviction proceeding and have the attorney funded by a surcharge on the landlords’ court filings proved too lofty for the General Assembly.

The legislature passed a bill guaranteeing tenants “access” — but not a “right” — to a lawyer in eviction proceedings. The General Assembly also failed to pass surcharge legislation amid opponents’ concerns of unfairness to small landlords who rely on rent payments to pay their bills.

Maryland Attorney General Brian E. Frosh, who supported a tenants’ right to counsel and lobbied for the landlord surcharge, said Tuesday that he was “really disappointed” with the double legislative defeat.

The right to counsel and funding surcharge emerged from a COVID-19 Access to Justice Task Force that Frosh formed in June to develop recommendations for ensuring legal representation for indigent Marylanders amid the pandemic-spurred economic downturn.

The panel found economic hardship very apparent in landlord-tenant cases, in which landlords can initiate an eviction proceeding by paying a $15 filing fee in Maryland district court – an amount far below the national average of $122. Citing his task force’s recommendations, Frosh called on lawmakers to raise the landlords’ filing fee to $120 and to put that money toward the Maryland Legal Service Corp.’s cost of providing lawyers for the tenants.

“Everybody has access to counsel if they have the money,” Frosh said Tuesday.

“We were not able to make progress in that area,” he added. “It didn’t go as far as I thought it should have gone.”

But Frosh said he takes solace in a provision of the tenants’ access to justice bill that requires landlords to give them 10 days’ notice before filing for eviction in court. No advance notice is required under current law.

“The notice will enable people to get the rent and not go to court,” Frosh said.

The attorney general also welcomed the passage of legislation raising MLSC’s annual share of the state’s abandoned property fund from $2 million to $8 million, a $6 million boost in legal services funding that could be used to help low-income tenants get representation.

Susan M. Erlichman, MLSC’s executive director, agreed.

“It’s not all doom and gloom,” she said.

The bill that would have provided a right to counsel, akin to criminal defendants, was criticized as providing a legal guarantee that could not be met due to its cost and that would flood court dockets, as eviction proceedings would have had to be halted until an attorney was provided.

“There are not unlimited funds,” House Judiciary Chair Luke Clippinger, D-Baltimore City, said during House debate in the final hours of the 2021 session Monday.

“It (the bill) will make legal access available to people who need it the most,” Clippinger added. “Making counsel more accessible is what we’re trying to do.”

The legislation calling for a $120 surcharge stalled after receiving hearings in the Senate Judicial Proceedings and House Judiciary committees.

The House did pass legislation for a $68 surcharge and the Senate approved a $50 fee but the two chambers did not reach a compromise before the session ended.

Opponents of the surcharge said subsidizing legal aid for low-income tenants in eviction proceedings would be unfair to unrepresented landlords who rely on rental fees as a major source of their income and have also been financially hard hit by the pandemic.

“Landlords are villains of some kind” under the legislation, said Del. Steven J. Arentz, R-Kent, Queen Anne’s, Cecil and Caroline. But landlords are also victims of the pandemic, he added.


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