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Judges call Hogan’s judicial transparency proposal unconstitutional

“While transparency in the judiciary is critically important, a desire for transparency must be tempered, if you will, by recognition of these underlying and sometimes competing principles,” says Andre Davis, a former federal judge and Baltimore city solicitor. (File photo)

Current and former judges are opposing Gov. Larry Hogan’s renewed call for legislation requiring that a state commission compile the sentences each Maryland circuit court judge renders against violent criminals, saying such a judicial scorecard threatens the judiciary’s independence from the public’s clamor to be tough on crime.

The state Constitution requires that judges sentence defendants based on the seriousness of their crimes tempered by any mitigating factors, said Baltimore City Circuit Judge Shannon E. Avery. Sentencing judges must be unswayed by fear of public ridicule and be independent of the executive and legislative branches of government when handing down sentences, Avery recently told a House work group examining Hogan’s proposal.

“Judicial discretion in sentencing is deeply rooted and critical to the constitutional requirements of due process and separation of powers,” Avery said.

The governor’s proposed Judicial Transparency Act “contravenes these constitutional values by imposing executive, legislative and public scrutiny of individual judicial sentencing decisions based solely on the length or, if you want to say, the severity of that sentence,” Avery added. “The bill does not capture all of the data that is needed to provide an accurate picture of the nuanced and complex sentencing decision nor, I should say, could it.”

But attorney Russell P. Butler, who has lobbied on behalf of crime victims, told the House panel Friday that due process is not the only constitutional right at issue. The First Amendment rights to free speech and to petition the government embodies the public’s right to access and scrutinize the sentencing records of individual judges, Butler said.

“Systemically, we as a society, as a matter of public policy need to make sure that our judiciary is accountable, and you start by the Constitution,” he added. “The public has a right to know.”

Under Hogan’s proposal, sentencing data would be supplied to the commission for every conviction related to a violent crime. The data would include the name of the sentencing judge, the crime, the sentence imposed, the applicable sentencing guidelines range and, if applicable, the reason the sentence departed from the guidelines and why a portion of the sentence was suspended.

Hogan’s office has stated that such a judicial record would enable the public to keep closer tabs on a justice system the governor has assailed as too often lenient in sentencing violent criminals.

But Avery and retired federal judge Andre M. Davis said the legislation could compel judges to issue severe punishments without taking into consideration individual defendants’ criminal and personal histories in mitigation.

“Judges are required to consider the universe of factors related to the offense and the offender,” Avery told the House Judicial Transparency Work Group.

“The legislation is an effort to circumscribe judicial discretion by focusing on the single factor, the length or severity of incarceration, to the exclusion of all other factors and the purpose of that is to influence judges toward a rigidity in sentencing,” Avery added. “Judges are constitutionally designed to be insulated from public criticism. We as judges are bound ethically not to be influenced by public clamor or public criticism.”

Davis, a former U.S. District and 4th U.S. Circuit Court of Appeals judge, said that “tough on crime has been a shibboleth that goes way, way, way back” but can interfere with the fair administration of justice.

“All of us want courts and judges who will decide the disputes that are brought before the courts fairly and impartially on the basis of the judges’ and the juries’ best efforts to determine the facts and the judges’ good-faith application of legal principles to those facts,” Davis said. “While transparency in the judiciary is critically important, a desire for transparency must be tempered, if you will, by recognition of these underlying and sometimes competing principles.”

Ronald Weich, dean of the University of Baltimore School of Law, also voiced concern for judicial independence under the governor’s proposal.

“A cold presentation of the sentencing as against the charge of which the defendant was convicted does not begin to tell you all the nuances and sensitivity and complexity of the individual decision,” Weich told the House panel.

“Attempting to aggregate these facts for individual judges would not only be misleading but, I fear, it would have the effect of intimidating and pressuring judges in a way that is entirely inappropriate,” Weich said. “We need to be sure that the General Assembly doesn’t take steps that unduly pressure or intimidate judges. That’s not the way you want to go.”

But Butler, the attorney, said compiling the sentencing records of judges is not necessarily to see which ones are tough on crime but to enable the public to determine if any are displaying racial bias in the punishments they hand down.

“Judges who are not following the law might conform to the law if reporting by judges was required,” Butler said. “The First Amendment requires that the system needs to be open.”

Hogan’s proposal, which he said last month he intends to have reintroduced this legislative session, has died in the General Assembly in previous years amid opposition from the judiciary.