Judicial Transparency Act based on flawed premises

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As introduced in the General Assembly, the Judicial Transparency Act sought to solve a problem that didn’t exist. The proposed law would’ve required the Sentencing Commission, as part of its yearly report, to identify every instance where a person was convicted of or pleaded guilty to a crime of violence and the name of the judge who suspended part of the sentence or departed from the advisory sentencing guidelines.

The Senate version of the bill has since been amended to require the sentencing data for crimes of violence to be aggregated by county. In the First, Second, and Fourth judicial circuits, the data is to be aggregated by circuit, so as not to identify the judges in the counties with only one judge.

Even with these changes in the proposed law, the Judicial Transparency Act is flawed because it is premised on a connection between lenient sentencing and violent crime that is not borne out by the Sentencing Commission’s own data. The vast majority of criminal sentences handed down in Maryland fall within or above the sentencing guidelines.

In 2021, the Sentencing Commission reported that, 81% of criminal sentences, regardless of the type of crime, fell within the advisory sentencing guidelines. The Eighth Judicial Circuit, which covers Baltimore city and is almost the sole focus of the governor’s frustration with violent crime, had the highest compliance with the sentencing guidelines. In 2021, 98.4% of all criminal sentences in Baltimore city fell within the guidelines.

The Seventh Judicial Circuit, which covers the heavily black Prince George’s and Charles counties, had 91% of criminal sentences — the highest besides Baltimore City — fall within the guidelines. By contrast, the criminal sentences doled out in the Fourth Judicial Circuit, which covers Allegany, Garrett, and Washington counties and rarely receives the Governor’s focus, only complied with the guidelines 68% of the time.

The focus on the judiciary is wrong, too. In 2021, the Sentencing Commission reported that in 88% of all criminal sentences that departed from the sentencing guidelines, the reduced sentence was either agreed to in a plea agreement, or recommended by the state’s attorney or the Division of Parole and Probation. In other words, criminal sentences that are more lenient than the advisory guidelines are not the sentencing judges own doing: They come at the suggestion of the state.

The name of the proposed legislation — the Judicial Transparency Act — is a misnomer.

Gathering the data by county or circuit, and not by individual judge is an improvement. But even as amended, the Judicial Transparency Act is incomplete. The data will not demonstrate when convicted violent criminals who receive lenient sentence are​ re​arrested for violent crimes while out on a suspended sentence, or a sentence that was lesser than the advisory sentencing guidelines recommend.

Violent crime is a problem in Maryland and across the country. But treating lenient sentencing as if it was contributing to the scourge of violent crime in a measurable way is wrong.

Criminal sentences hardly ever fall below the advisory guidelines, and to the extent they do, it is elected prosecutors exercising their discretion by recommending lower sentences or offering plea deals. The judiciary’s role in this process is simply accepting the recommendations of the prosecutor or the plea agreement between the government and the defendant.

The Judicial Transparency Act is an unnecessary piece of legislation that will not help to reduce violent crime in our state.

Samuel Morse is an associate attorney with Joseph, Greenwald & Laake, P.A.