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Legislature rebuffs Hogan’s ‘judicial transparency,’ rejects listing judges’ names

Steve Lash//April 12, 2022

Legislature rebuffs Hogan’s ‘judicial transparency,’ rejects listing judges’ names

By Steve Lash

//April 12, 2022

“The broader concern is that (a listing by name) would put judges in a position that they are playing to the audience” rather than ruling strictly on the convict before them, says Del. Luke Clippinger, D-Baltimore city and chair of the House Judiciary Committee. (The Daily Record/File Photo)

The Maryland General Assembly ended its 2022 session Monday having spared circuit court judges of having a state commission compile by name the sentences each has rendered for violent criminals, a gubernatorial proposal the jurists said would have threatened judicial independence by subjecting judges to intense public scrutiny.

Gov. Larry Hogan sought the by-name listing, calling it critical for the public’s understanding of the criminal justice system during a time of soaring violence. His office told legislators that disclosure of judicial records to and by the Maryland State Commission on Criminal Sentencing Policy would be to foster “judicial transparency” and not put public pressure on judges.

But the General Assembly rejected Hogan’s proposed judge-by-judge listing in favor of a listing of sentences by county and Baltimore city. Smaller counties with few judges would be grouped together to protect the identities of the judges in those jurisdictions.

For example, Dorchester, Somerset, Wicomico and Worcester counties would be a listed as single entity, as would Caroline, Cecil, Kent, Queen Anne’s and Talbot counties. Allegany, Garrett and Washington counties would also be combined.

With just hours to spare in the session, the Senate approved the measure, Senate Bill 763, on a 37-9 vote, while the House of Delegates’ vote was 106-9.

Sen. William C. “Will” Smith Jr., who chairs the Senate Judicial Proceedings Committee, said Tuesday that the legislation headed to Hogan’s desk would balance the public’s right to accessible information and the need for judges to be protected from unwelcome public pressure in sentencing.

“The judicial branch should be insulated from the political whims of the day,” said Smith, D-Montgomery. “They are not a political branch.”

Del. Luke Clippinger, who chairs the House Judiciary Committee, said it is important that judges not be listed by name so as to prevent unfair comparisons with other judges’ sentences, as each defendant and case presents different aggravating and mitigating factors.

“It is hard to compare those apples and oranges,” Clippinger said Tuesday.

As for judicial independence, Clippinger said, the public pressure sentencing judges would face as a result of the name-by-name breakdown would come from both sides, with some people concerned about judges being too lenient and others worried they are being too harsh.

“The broader concern is that (a listing by name) would put judges in a position that they are playing to the audience” rather than ruling strictly on the convict before them, said Clippinger, D-Baltimore city.

Hogan’s office did not immediately respond Tuesday to a request for comment on the legislation and whether he plans to sign it or take other action.

The difference between the Republican governor’s and Democratic-led legislature’s approach to the information the state commission should disclosed was reflected in the names of their respective legislative proposals.

The bill Hogan backed was the proposed “Judicial Transparency Act.” The measure the legislature passed is the proposed “Criminal Justice Date Transparency Act.”

The Hogan-backed measure faced staunch opposition from the state Judiciary this session.

Maryland District Court Chief Judge John P. Morrissey told the Senate Judicial Proceedings Committee in February that the “transparency” Hogan’s bill sought 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.”

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

“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.”


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