Hogan, Judiciary battle over ‘judicial transparency’ in sentencing

Gov. Larry Hogan’s administration squared off Thursday against the Maryland Judiciary and a law school dean over the governor’s call for legislation requiring a state commission to compile by name the sentences each Maryland circuit court judge renders for violent criminals.

A Hogan aide told the Senate Judicial Proceedings Committee that such a by-name listing is critical for the public’s understanding of the criminal justice system during a time of soaring violence. But the Maryland district courts’ chief judge and the head of the University of Baltimore’s law school said a listing by name would threaten judicial independence amid the public’s clamor that judges be tough on crime.

The Hogan-backed bill – the proposed Judicial Transparency Act – has died in the General Assembly in recent years amid opposition from the Maryland Judiciary and a Democratic-run legislature critical of the Republican governor’s accusation that judges are too lenient on violent criminals.

Erin Chase, of the governor’s legislative office, told the Senate committee that disclosure of judicial records is about providing public information and not applying public pressure on judges.

“Maryland citizens expect and deserve transparent and accessible government across the three branches, which includes the judiciary,” Chase said.

“Given the historic rise in violent crime, we must take a holistic approach to understanding how and why these crimes are increasing,” she added. “This requires additional reporting and access to data related to the sentences our judges are giving to offenders of violent crimes. By expanding the reporting requirements, Marylanders will have access to information that will better help them understand the judicial branch and how sentences are being determined.”

Senate Bill 392 would call on the Maryland State Commission on Criminal Sentencing Policy to compile for each judge the sentence he or she imposed for each defendant convicted of a violent crime, including whether the sentence fell within sentencing guidelines and if any prison time was to be suspended. Judges’ names would also be provided for plea agreements that would specify whether the sentence issued fell within sentencing guidelines and was therefore guidelines “compliant.”

Maryland District Court Chief Judge John P. Morrissey said the “transparency” the bill seeks to foster already exists insofar as court proceedings are open to the public, recorded and transcribed. In addition, judicial decisions are subject to appeal and the judges themselves can be investigated for ethical lapses by the Judiciary’s Commission on Judicial Disabilities.

“If the question is asked what this (judge-specific) data would do if released, it seems likely that it would be used to criticize a judge that, depending on current sentiments, could be that the judge was too tough on crime or not tough enough,” Morrissey told the Senate committee. “But we’re not supposed to be tough on crime or lenient on crime. Judges are supposed to be fair and apply the law to the unique facts and circumstances of each case.”

Ronald Weich, dean of the University of Baltimore School of Law, said a raw listing of judges and the sentences they imposed would ill-serve the interests of justice, in which criminal penalties must be based on the circumstances of each case and each convict.

“I fear that the kind of report that the bill calls for would effectively be misleading because there are so many factors that contribute to the imposition of a sentence that couldn’t be captured in a cold report,” Weich said. “Judges would unduly be pressured and criticized and vilified for doing their jobs.”

But Sen. Robert Cassilly, R-Harford and a Senate committee member, said greater information about individual judges and the sentences they render is important in light of the public’s heightened concern about violent crime.

Cassilly added that prosecutors and defense attorneys certainly know the sentencing records of the judges before whom they appear.

“The only ones that don’t know it are the public,” Cassilly said. “They (judges) operate largely outside of the public’s knowledge.”

SB 392 has been cross filed in the House of Delegates as House Bill 412.